The novel coronavirus COVID-19 pandemic has caused disruption across the world. In the legal sphere it has also caused confusion as to people’s respective obligations and duties towards each other, particularly in the context of employment relationships.
In this paper, Barrister Dermot Sheehan examines common law and statutes with respect to the potential liability that could conceivably ensue for employers, employees and even medical officers notwithstanding the unfolding and very recently introduced legislative measures in this context.
Basic principles of negligence and foreseeability
An employer owes an employee a common duty of care under the law of negligence, and breach of that duty of care can result in liability for any losses that were reasonably foreseeable.
An employer and employee also owe each other mutual obligations under the contract of employment and normally implied into such would be terms that the employer has a reasonably safe work premises and take reasonable measures to ensure employee safety.
There are also Acts of the Oireachtas and regulations made thereunder that impose duties on employers and employees that can give rise to civil liability.
Other than the Safety, Health and Welfare at Work Act 2005 and the Occupier’s Liability Act 1995 (which impose duties on employers and occupiers of properties respectively), the Health Act 1947 imposes obligations in respect of the control of contagious disease.
Unfortunately although the basic principles are well known, application of these principles to this unprecedented situation where society is advised to socially distance and workers are advised to stay at home is not at all clear.
Common Law Duty of Care
At common law the House of Lords held in Metropolitan Asylum District v. Hill (1881) 6 App. Cas. 193, at p. 204 and p. 207 that an infectious person – and those who had charge of him or her – had a duty to prevent the infection of others and indeed it was an indictable offence at common law to expose others to the risk of infection.
This appeal to the final court of appeal in the United Kingdom was primarily dealing with whether an injunction could be granted against a public authority in respect of a hospital for the treatment of infectious disease and whether the erection of that hospital constituted a public nuisance.
Lord Blackburn’s speech however outlined principles in respect of the duties towards an infectious person at common law stating:
“Those who have the charge of a sick person, if he is helpless (whether the disease be infectious or not) are, at common law, under a legal obligation to do, to the best of their ability, what is necessary for the preservation of the sick person.
And the sick person, if not helpless, is bound to do so for his own sake. When the disease is infectious, there is a legal obligation on the sick person, and on those who have the custody of him, not to do anything that can be avoided, which shall tend to spread the infection; and if either do so, as by bringing the infected person into a public thoroughfare, it is an indictable office, though it will be a defence to an indictment if it can be shown that there was a sufficient excuse to do what is prima facie wrong
…
Where those who have the custody of the person sick of an infectious disorder have not the means of isolating him from the other inmates, which are very commonly the case with the poor, and consequently those other inmates and the neighbours are exposed to the risk of infection, I think that the inability to isolate him would form a sufficient excuse to be a defence to any indictment, and I think also, though I am not aware of any authority on the subject, that the neighbours could not maintain any action for the damage which they would in such case sustain from the proximity of the infected person, it being a necessary incident to the use of property for habitations in town, that contagious sickness may befall their neighbours.”
In Denneny v. Kildare County Board of Health [1936] IR 384 the High Court of the Irish Free State heard a negligence claim in which it was alleged that the public health authority negligently discharged a patient while she was still infected with scarlet fever, so that she infected her sibling who died.
An action by the parents for damages was dismissed on the basis that the health authority were not vicariously liable for the clinical judgement of the medical officer in discharging the patient.
This is not the current law and an employer of medical staff would under current law be vicariously liable for negligent clinical decisions.
The judgement by Hanna J. does not therefore explicitly deal with whether liability would have existed if the medical officer was personally sued, although a paragraph at the end of the judgement does express some scepticism of this course of action providing:
It is not necessary to decide these points, nor is it necessary to decide what the position would be if the defendant were Dr. Williams or if the plaintiff were the child Carmel. I need only point out this extraordinary result, which was referred to by Mr. Barry, that if the plaintiff’s contention be correct, not only would everyone of the three persons who took scarlatina from the little girl be entitled to bring an action against the Board of Health, as well as Mrs. Mitchell, but, if there had been an epidemic, the whole neighbourhood might have had an opportunity of bringing actions against them.
It appears that there was concern for policy reasons on imposing civil liability for causing an infection. This portion of the judgement is obiter dictum and doesn’t govern the resolution of that case and its precedential value is limited.
Infectious Diseases – Statutory Duties
The common law principles have been supplemented by statute.
There are certain diseases declared to be infectious diseases subject to statutory control and the Infectious Diseases (Amendment) Regulations 2020 adds COVID-19 to this list from 28 February 2020.
Section 30 of the Health Act 1947 provides:
30.—(1) A person who knows that he is a probable source of infection with an infectious disease shall, in addition to taking the precautions specifically provided for by or under this Part of this Act, take every other reasonable precaution to prevent his infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact.
(2) A person having the care of another person and knowing that such other person is a probable source of infection with an infectious disease shall, in addition to the precautions specifically provided for by or under this Part of this Act, take every other reasonable precaution to prevent such other person from infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact.
(3) A person who contravenes subsection (1) or (2) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding [a Class D Fine].
There are no reported cases available on how the courts would construct section 30. It imposes criminal liability but as a measure designed to protect people there is no reason in principle why it could not ground civil proceedings for breach of statutory duty.
Section 43 of the Health Act 1947 anticipates that civil proceedings for damages can be brought for breach of the precautions imposed under the Act providing for a civil presumption that the infection was caused from the failure to implement the precaution
43.—Where—
(a) circumstances have arisen in which a provision of this Part of this Act or of any regulations made thereunder requires a person to take a precaution against the infection of other persons with a particular infectious disease, and
(b) such person has failed to take the precaution, and
(c) any other person has been without his knowledge exposed by such failure to the risk of infection with the disease, and after such exposure has been infected with the disease,
in any action against the first-mentioned person by such other person for damages suffered by reason of his having been infected with the disease, the Court shall presume that such infection was the direct result of the failure to take the precaution unless the Court is satisfied (and the onus of so satisfying the Court shall lie on the defendant) that by reason of the time of such infection or for any other reason it was unlikely that such failure caused such infection.
The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 inserts section 31A into the Health Act 1947 which gives the Minister for Health wide powers to make regulations to combat the spread of COVID19 with criminal consequences.
As of the date of this article being published no such regulations have been made or promulgated, given the terms of section 43 of the 1947 Act it appears that damages in civil proceedings can indeed be brought for anyone who has been infected as a result of a breach of those provisions by another.
It should be noted that section 33 of the Health Act 1947 which requires a person selling or landlord letting a property in which an infectious person has been residing within 3 months of the sale or letting to give notice of the infectious to the purchaser or new tenant, does not apply in respect of COVID-19.
This is because COVID-19 was added to the schedule of diseases in the Infectious Diseases Regulations 1981 which provide that section 31 does not apply to the diseases in that schedule
The Safety, Health and Welfare at Work Act 2005 imposes general duties to have a safe place of work with appropriate training and equipment.
Of particular note is that section 19 and 22 of the Act requires a risk assessment be performed and that if necessary on foot of that risk assessment, health surveillance measures be implemented.
The Act also requires that an employer provide appropriate personal protective equipment if necessary and there is civil liability for an employer breaching its provisions.
Employer/Employee Contractual Duties
It would be rare for an employer/employee to have terms in the contract of employment which would have envisaged this pandemic.
Normally implied into a contract of employment are terms that an employer would take reasonable measures to ensure the employee’s safety, which would overlap with the common law and statutory duties.
The contractual element would arise as to whether an employee is entitled to be paid if it is no longer safe for them to perform the work or the business for other reasons needs to be shut.
How the law might be applied
It is difficult to predict how these principles will be applied. It would appear that knowingly, (and possibly negligently or recklessly) an infected person not following precautions and infecting another would be civilly liable for the damages resulting therefrom at common law and pursuant to the provisions of the Health Act 1947.
It would appear that someone who has control over another (such as an employer), could be liable if they knowingly (and perhaps recklessly or negligently) permit or require that person to perform acts that infect another.
This would cover an employee who insists on attending the workplace notwithstanding a positive test result or an employer who insists on such a person attending the workplace.
It appears that if someone is infected as a result of a breach of the Health Act or the regulations or precautions made thereunder there may be civil liability.
The regulations have not been made as of the time of publication, but assuming the regulations provide for 2 meter social distancing and other such measures, it would appear that a breach of those measures may give rise to a civil liability if they cause infection.
The Safety, Health and Welfare at Work Act 2005 requires an employer to take reasonable measures, perform risk assessments and provide appropriate equipment.
Whether it is reasonable under the 2005 Act to insist on employees attending the workplace for work which could be performed remotely from home remains to be seen.
Updating workplace risk assessments
One could argue that an employer who requires employees continue to attend the workplace in the current environment would need to update a risk assessment.
A risk assessment may recommend changes to the workplace including distancing, cleaning, safety equipment and/or health surveillance.
At the moment is not clear and how the courts will treat employers who continue to operate in the current work environment without updated risk assessments and appropriate safety measures deployed is not certain.
Illness is a form of disability under the Employment Equality Acts, and although there is no legal right to sick pay above and beyond what is in the contract of employment, an employer cannot dismiss an employee simply because they are sick, particularly for an illness like COVID-19 in which a full recovery for the vast majority of patients would be expected within a matter of weeks.
There is a special COVID-19 social welfare payment for those infected or forced to self isolate.
Having with regard to the provisions of the Health Act 1947, it would appear that an employee could not insist on attending work and being paid if infected with COVID-19 and in those circumstances it would be reasonable for an employer to place them on sick pay (or advise them to apply for COVID-19 illness benefit if there is no contractual entitlement to sick pay).
What is not clear is what is to occur if an employee self isolates due to potential exposure. There is a social welfare COVID-19 payment for employees who are advised by a medical practitioner to isolate, but it is not clear if the contractual provisions regarding sick pay are activated by such a measure.
There is no legal provision (as of the date of publication) excusing an employee from coming to work if they are isolating due to potential exposure, however it would be difficult to see an employer succeeding in any disciplinary sanction or measures following on from such an absence given the current public health advice, particularly if the employee was advised to self-isolate by a medical practitioner.
Laying off employees during a pandemic
In respect of lay-offs, there is no common law right to lay off (Johnson v Cross [1977] ICR 872) and the general contractual duty of an employer is to provide the work and the employee to perform the work and be paid for it.
An argument can be made either that such a term could be implied into the contract of employment or given the unprecedented event of a pandemic, that the contract of employment can be suspended for frustration, i.e. outside unanticipated events outside the control or anticipation of either party which prevent the contract from being performed.
An employee normally can only be laid off only for four weeks, after which they could serve a notice under s. 12 of the Redundancy Payments Act requiring the lay-off to be treated as a redundancy with the redundancy payment being triggered.
The Emergency Measures in the Public Interest (COVID-19) Bill 2020 will insert section 12A into the Redundancy Payments Act stating that section 12 does not apply for the duration of the current public health emergency.
An employee who disputes an entitlement of an employer to lay off could either treat the lay-off as a repudiatory breach of the contract of employment and bring proceedings for constructive dismissal, or simply bring civil proceedings for the wages due during the period of the lay-off.
If (genuinely) the work is not available an employer can always utilise the redundancy route and make workers redundant. Whether this would be upheld if a challenge is heard in several months, when the disease may have abated and economy recovered remains to be seen.
An employee could challenge the redundancy on the basis that his or her position was not genuinely redundancy and the COVID-19 pandemic was only a short term disruption that will affect the business for a matter of weeks.
How the Labour Court and courts in general will treat lay-offs and redundancies in the current pandemic is not clear since the current situation is unprecedented in modern times.
Conclusion…or Confusion? > Unanticipated legal scenarios
The former U.S. Supreme Court justice Oliver Wendell Holmes has a famous quote in respect of the development of the common law:
“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage.
The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.”
Justice Oliver Wendell
Given the current epidemic is unprecedented, at least as far as living memory is concerned it is difficult to anticipate how the courts will apply common law principles or contracts or statutory rules in respect of the current pandemic.
A starting position is that parties are expected to behave reasonably, the tort of negligence is based on a breach of the standard of care expected of a reasonable person.
Under statute people are expected to abide by the statutory duties and regulations in respect of the control of an infection and an employer is under significant duty to take measures to ensure that the workplace is reasonably safe and to conduct risk assessments to ensure that this duty is performed.
