Protecting businesses against duty of care litigation in the pandemic

Duty of care litigation
Businesses owe a duty of care towards employees and customers to protect them from any foreseeable harm. The Covid-19 outbreak has changed the expectations of stakeholders and increased the risk of potential legal disputes.

Protecting society against SARS-CoV-2 has proven to be challenging and governments are facing lawsuits against the specific actions they have taken, failed to take or introduced too late. The same is happening to businesses. 

In the US, for example, five employees have filed a lawsuit against their employer, a large fast food chain, together with four family members, alleging that the company failed to provide enough personal protection equipment such as gloves, masks and hand sanitizer. The lawsuit adds that the company didn’t provide proper training, allow for proper social distancing or notify when workers test positive for COVID-19.

In another case, a large US supermarket chain is facing legal claims after the death of an employee with Covid-19. The lawsuit alleges that the store management knew that several employees and individuals at the store were showing symptoms of the disease and failed to cleanse and sterilize the store in order to prevent infections; to implement, promote, and enforce federal and state social distancing guidelines, among other allegations. 

Protecting employees against a virus that can be transmitted via airborne particles emitted through breathing or coughing is certainly a difficult task for all businesses as many processes involve a form of face-to-face human interaction. Employees who contracted Covid-19 may allege that they have contracted the virus at work and consequently file a claim against their employer for negligence.

Potential claims may for example allege that the employer failed to undertake and implement adequate workplace risk assessments to include access routes, one way systems, staggered shifts, etc. The employer may also face vicarious liability claims after people suffering symptoms of Covid-19 knowingly came into the workplace and affected others unwittingly or, sadly, even deliberately, to name just a few.

Applicable regulations will be used by claimants to support any case in negligence and therefore employers need to implement and enforce them as soon as they are introduced. Showing that the business complies with its duty of care and that it took reasonable steps to provide a safe place as well as safe system(s) of work to protect employees and clients against reasonably foreseeable harm can offer effective protection against claims.

There are a number of steps that employers should take: 
•    Document the thought process behind the decisions taken to protect employees and clients.
•    Follow and implement government guidance
•    Conduct suitable, bespoke risk assessments in respect of Covid-19 risks, and implement appropriate controls such as systems of work and training where necessary and reasonably possible. 
•    Produce documented systems of work giving clear evidence of what the employee is/was expected to do to keep them and their colleagues safe that include measures implemented in response to COVID-19 and an effective system for sending staff home if they display symptoms.
•    Ensure and evidence that new controls, systems of working, instructions and procedures have been communicated to staff and have been understood. 
•    Monitor, supervise and enforce the organisation’s policies and controls. 
•    Comprehensive accident investigations are often the most crucial document in a claims defence strategy including witness evidence and suggestions to prevent recurrence.

For further information, please watch our recent webinar in cooperation with our colleagues at law firm BLM, or contact: 

James Harvey, Partner, BLM
Tel.: +44 (0)121 633 6622


Mark Black, Risk Management Executive, Lockton Risk Consulting
Email :
Tel.: +44 (0)7584 382447

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