Long Covid at work: The legal implications for the UK workforce

With the health implications of long Covid still being analysed and discovered, personal injury specialist Dan Poet from Thompsons Solicitors answers questions about the disease and its implications for the UK workforce

What is long Covid?

There is currently no official agreed definition of long Covid. It covers a broad range of symptoms, including shortness of breath, insomnia, ‘brain fog’, dizziness, nausea and rashes. The most common ongoing problems include fatigue, coughs, headaches and muscle pain.

While some symptoms can be just unpleasant, others can be debilitating, especially if experienced for long periods of time, and the impact has been known to affect a sufferer’s ability to work.

Who can claim for contracting long Covid at work?

It’s early days in terms of anyone commencing litigation connected to the COVID-19 pandemic. Nonetheless, at Thompsons Solicitors we have – in response to a considerable number of enquiries from people who have been or remain ill, and even from relatives of those who have died – begun putting together the building blocks for litigation. We are aiming to bring together information that will build the strongest platform for success.

We are working with clients who have been exposed to and contracted COVID-19 at work, but we are also looking at claims from the families of those who have contracted the virus at work and unwittingly taken it home and passed it on to a loved one.

What are the practicalities of bringing a long Covid claim?

It will be the job of the legal representative to prove each of the following:

• A breach of duty by the employer: this is most likely to be negligence in the workplace – say a lack of a substantive COVID-19 risk assessment or any adequate system of infection control being in place, or a breach of the Control of Substances Hazardous to Health (COSHH) or Personal Protective Equipment (PPE) regulations;
• Causation: proving that, as a result of an employer’s actions (or inactions), it is more likely than not that the contraction of the condition was at work and, crucially, as a result of the employer’s breach of duty; and
• Foreseeability of injury: the employer should have reasonably foreseen that an employee would become ill because of their conduct.

How straightforward is the process likely to be?

It is going to be easier to prove negligence in some workplaces than in others.

For example, in healthcare settings, employers will have no excuse not to know that they have been exposing workers to the virus and so the question will be whether they reduced that risk of exposure to the lowest reasonably practicable level, through the use of PPE, for example. In other cases, employers may have been made aware that COVID-19 was an issue in their workplace but failed to then take precautions. And then there will be those where they didn’t know –due to the lack of an adequate risk assessment that they were exposing workers to colleagues, suppliers, service users or customers who are potentially carrying the virus.

The key requirement for the legal team in any claim against an employer will be to show ‘causation ‘– which, in the case of COVID-19, first and foremost means showing that the exposure to and contraction of the condition occurred at work. This will involve looking at, for example, how an individual travelled to and from work, their interaction with family or friends. It is going to be necessary to discount the chances that they may have encountered someone carrying the virus other than at work in the crucial three to seven days before the onset of symptoms.

We also need to show that the breach of duty by the employer that is being alleged led, on the balance of probabilities, to the infection.

What will help your case?

The strongest COVID-19 related personal injury claims are going to be where one or more of the following apply:

• The employer has failed to provide any or any adequate PPE, despite there being an obvious risk of infection;
• The employer had no risk assessment or having written one it was clearly inadequate or having written a sensible risk assessment they failed to follow it; or
• There was an outbreak of cases in the establishment, but the employer failed to adapt the regime or take other steps to keep the workplace reasonably safe.

What is Thompsons’ position on long Covid litigation?

We are adopting a cautious, but progressive, approach – as we are mindful that the pandemic is not yet over, and it is important that we act sensibly and in the public interest. There will be those who see this as an opportunity to scaremonger and raise false hopes and those who will rush into ill thought out litigation, but having only acted for injured people and never employers or insurers for 100 years. and having run many of the cases that made the laws and precedents that are relied on still, that won’t be us.

We have submitted some initial claims for clients who believe they contracted coronavirus at work, but that is just the first step, and we are awaiting responses from employers and their insurers. Once we have their responses, we will know whether litigation is necessary and appropriate.

What should I do now if I am considering bringing a case against my employer?

The key thing anyone can do, who believes that they, or a colleague, have contracted COVID-19 at work, is to make sure that it is reported.

As specialists in personal injury, we are here to provide advice on COVID-19 related claims for any individual who thinks they may have caught the disease at work and believes that their employer is liable.

Our thoughts are with all those who have been affected, especially with those who have lost loved ones to this devastating condition, and we are here to support anyone whose illness has been caused by an employer’s negligence.