I. Introduction
Let’s imagine that Fred worked for Cosmic Carpets, a company based in England, during the coronavirus disease (“COVID-19”) pandemic. In December 2020, Fred’s employer asked him to return to the factory after a period spent working remotely. At that time, government guidance recommended that employers take steps to stop the spread of COVID-19 in the workplace. Cosmic Carpets ignored that guidance. After returning to work, Fred tested positive for COVID-19. Contact tracing data showed there was an outbreak at the factory at the time. Fred’s illness was severe and he was admitted to hospital. He was subsequently diagnosed with pulmonary fibrosis. Fred’s doctors say that he is now unable to work and will be dead within five years. Fred blames Cosmic Carpets for failing to take precautions against COVID-19; Cosmic Carpets denies that Fred’s illness is its fault.
Fred’s case is inspired by real events: workplaces were loci of transmission of COVID-19,Footnote 1 the UK Government did publish guidance for employers on making workplaces “COVID-secure” during the pandemicFootnote 2 and pulmonary fibrosis is a recognised complication of coronavirus disease.Footnote 3 It raises an interesting question: Would an employer that failed to make its workplace “COVID-secure” be liable in negligence for the damage suffered by an employee who contracted COVID-19 in the course of his/her employment? This question is not solely of academic interest: several cases have gone before the courts since the pandemic contesting the same issue.Footnote 4 Dozens of law firms and trade unions continue to offer advice to workers seeking compensation after catching COVID-19 at workFootnote 5 or to employers about their liabilities.Footnote 6 As the pandemic fades from view, the prospect of a long tail of litigation trails in its wake.Footnote 7 The significance of this is not limited to COVID-19: if employers owe duties to protect workers from infectious diseases in general circulation, then this has implications for future outbreaks and epidemics (e.g. bird flu, swine flu, monkeypox, etc.).
Cases such as Fred’s resemble at first glance instances of occupational illness that are well known in the domain of employers’ liability.Footnote 8 If employers can be liable for failing to protect their workers from the risk of, say, cancer in the workplace,Footnote 9 then perhaps it follows that COVID-19 – and other infectious diseases that may be acquired at work – fall into the same category. The Government’s guidance for employers during the COVID-19 pandemic certainly implied that they were under an obligation to protect their employees from coronavirus disease. At its core was an assumption that the category of occupational illness is expansive enough to include diseases in general circulation within its ambit.
This article argues that this assumption rests on a mistaken understanding of the law. No authority supports the proposition that an employer owes a duty to its workers to protect them from the risk of contracting, at work, diseases that are in general circulation in the community. An employer’s duty is limited to occupational diseases arising out of, or in connection with, work directed by that employer in the workplace, such as dermatitis,Footnote 10 neurological disease,Footnote 11 industrial deafness,Footnote 12 etc. It is not an open-ended obligation to underwrite all risks of illness within the employer–employee relationship. Unless an infectious disease poses a specific occupational risk, it must fall outside the scope of the employer’s duty. Otherwise, defendant-employers would be responsible for risks they cannot reasonably prevent or mitigate, which would undermine English tort law’s fault-based logic and potentially have policy implications for employers, industrial relations and the job market.Footnote 13 This article therefore makes a novel contribution by applying the “scope of the duty” principle to employers’ liability in the specific context of infectious disease.Footnote 14 In doing so, it challenges the assumption that employers owe a duty to protect their workers from “non-occupational” infectious disease.
This article is in three parts. Section II examines the Government’s COVID-19 guidance for employers. It shows from where the doubtful assumptions about employers’ liability originated and explores some of the justifications for them. Section III analyses case law and secondary legislation and finds that there is no authority to support the contention that an employer must take steps to protect employees from infectious diseases in general circulation. Such an obligation would place employers under a continuing duty to protect their employees from the risk of contracting any infectious disease in the workplace, potentially bringing common colds, flu, stomach upsets, etc., within the law’s ambit. Section III explains that the employer’s duty turns on a distinction between “occupational” infectious disease, which can attract liability in tort, and “non-occupational” infectious disease, which will not. COVID-19, like other diseases in general circulation, will, in most cases, fall into the latter category and therefore lies beyond the scope of the employer’s duty of care. Finally, Section IV explains why a duty that went further than the limits delineated in Section III would be misconceived. The article concludes that the Government’s guidance during the pandemic relied on doubtful assumptions about the scope of the employer’s duty. These conclusions have significant implications for post-COVID-19 litigation and any disputes arising from other disease outbreaks.
A few preliminary points before we embark on this analysis. First, this article specifically examines the scope of the employer’s duty of care – it therefore omits discussion of the logically posterior questions of breach and causation. Where the duty exists, it is well established that an employer’s liability will turn on whether it was negligentFootnote 15 or whether its negligence caused an employee to suffer injury or illness.Footnote 16 In cases involving infectious disease, questions of breach and causation would likely provoke significant contestation. However, if it is true that the employer’s duty does not extend to infectious diseases in general circulation, it follows that breach and causation are moot in those circumstances. Further, this article says nothing about whether the scope of other duty bearers’ obligations (e.g. schools, universities, local authorities) might include a duty to stop the spread of infectious diseases. Whether what follows would port to other duty bearers is a question for another time.
Second, limited space precludes an exploration of other remedies that might be available to employees. For example, the implied term of mutual trust and confidence, which is a feature of all contracts of employment,Footnote 17 might offer another plausible avenue for redress. Where an employer’s conduct is likely to “destroy or seriously damage the relationship of confidence and trust between employer and employee”, the innocent employee may “step away from the contract forthwith” and sue for wrongful dismissal.Footnote 18 This might be relevant where, for instance, Fred learns upon being recalled to work that Cosmic Carpets has not followed the Government’s guidance and chooses to resign rather than put himself at risk of catching COVID-19. Whether Cosmic Carpets’ failure to comply with government guidance breaches the implied term of mutual trust and confidence would be a question of fact. Since the pandemic, there is authority to suggest that an employer’s failure to address the risk of COVID-19 in the workplace might constitute a repudiatory breach of contract.Footnote 19 Whether the same can be said in respect of other infectious diseases is unclear. Legal redress for a breach of the implied term of mutual trust and confidence remedies wrongful dismissal rather than personal injury, so its domain differs from the focus of this article. Nonetheless, what follows sits within a broader firmament of employers’ obligations about which the COVID-19 pandemic raises questions that warrant further inquiry.
Third, this article’s principal focus is the scope of the employer’s duty as it exists in English law. This does not mean that it overlooks case law from elsewhere or that its conclusions have no wider relevance. Statutory schemes governing workers’ compensation for occupational diseases have supplanted the common law in many comparable jurisdictions.Footnote 20 Those schemes typically bar claimants from bringing proceedings against their employers at common lawFootnote 21 or sidestep the question of fault entirely.Footnote 22 The resulting paucity of case law makes it difficult to draw useful comparisons. The author has found no cases in any jurisdiction where an employer was held to owe a common law duty to a worker in respect of an infectious disease unrelated to his/her employment that he/she contracted at his/her workplace. Instead, statutory schemes invariably specify “occupational disease” by example and omit infectious diseases that circulate in the community.Footnote 23 The scope of recoverability is therefore limited in other jurisdictions in the same way that this article contends it will be in England.
Finally, this article follows a doctrinal methodology. In time, it would be interesting to know whether any employers incurred costs in complying with the Government’s guidance or whether any chose to settle claims brought by injured employees. As we move out of the pandemic’s shadow, it may inspire empirical research into questions such as these. It will also raise practical questions about how the law should respond to future pandemics. We sidestep these questions for now to analyse the doctrinal issues raised by infectious disease in the context of employers’ liability.
II. On the Origins of Misunderstanding
A. Guidance for Employers
The UK Government published industry-specific COVID-19 guidance for employers in May 2020.Footnote 24 It said employers had “a duty” to reduce workplace risk “to the lowest reasonably practicable level by taking preventative measures”.Footnote 25 The guidance suggested employers take specific precautions, many of which will be familiar to anyone who lived through the pandemic in the UK. Amongst other things, it recommended staggering workers’ arrival and departure times, one-way systems to manage foot traffic, signage to support social distancing, handwashing/sanitising stations and occupancy limits.Footnote 26 The guidance also suggested that employers refrain from playing “music or broadcasts that may encourage shouting” to reduce the risk of aerosol transmission,Footnote 27 limit the use of “high-touch items”Footnote 28 and keep facilities well ventilated.Footnote 29
The guidance is striking for several reasons. First and most obvious is the extent to which it invoked imperative language. It referred to employers’ “duties”Footnote 30 and “legal responsibility”;Footnote 31 spoke of “risk assessment”,Footnote 32 “compliance”Footnote 33 and “enforcement”;Footnote 34 and said it is “critical” that employers keep everyone safe.Footnote 35 Through its routine use of modal verbs (“[y]ou must maintain social distancing in the workplace […]”),Footnote 36 the guidance suggested that employers were obligated to comply with it. Failure to do so could “breach health and safety law”Footnote 37 – although it never made explicit how or why that might have been the case. While the guidance was “non-statutory” and did not supplant existing health and safety rules,Footnote 38 its wording conveyed the opposite impression. COVID-19 was a “public health emergency” and employers needed to “do everything reasonably practicable” to minimise the risk of their workers contracting it.Footnote 39 The guidance’s vocabulary and phrasing made it read as though it comprised more than simple advice.
Second, the Government waited a full 46 days after the first lockdown took effect in England on 26 March 2020 before it published guidance for employers.Footnote 40 As the COVID-19 pandemic retreats into the past, it is easy to forget how many employers operated as normal throughout that time. According to the Office for National Statistics (“ONS”), 10.6 million people (33 per cent of the workforce) worked in “key” industries in the UK in 2019, including health and social care, education, utilities, transport, public safety, national security and government.Footnote 41 Additionally, around 1.5 million people worked in industries supplying food and necessary goods.Footnote 42 The lockdown regulations listed businesses that could remain open as essential services, including supermarkets, chemists, petrol stations, banks, post offices and veterinarians.Footnote 43 While 46.6 per cent of workers pivoted to remote working,Footnote 44 a third of the workforce was still turning up for work in-person across a wide range of sectors. If employers were to be in some way legally mandated to protect their workers from the risk of COVID-19, it seems a curious oversight that the Government did not issue guidance sooner.
Third, the Government opted to produce guidance for individual employers in specific workplaces. The guidance published on 11 May 2020 was for workers in offices,Footnote 45 even though people in desk-based jobs were still expected to continue working remotely at that time.Footnote 46 Further guidance was published in the summer of 2020 for people working in, amongst other places, people’s homes;Footnote 47 vehicles;Footnote 48 factories, plants and warehouses;Footnote 49 laboratories;Footnote 50 construction sites;Footnote 51 and shops.Footnote 52 The Government therefore issued piecemeal, sector-by-sector guidance, even though much of it simply duplicated the same advice. The guidance also underwent multiple revisions before being abandoned when the second lockdown took effect in England in November 2020.Footnote 53 The Government would later publish general guidance for workplaces covering respiratory infections more broadly.Footnote 54 Why it took this “scattergun” approach is hard to discern: the publication of sector-specific guidance was not correlative with an easing of restrictions and was often poorly timed. Despite that, it may have contributed to an impression that the Government was tailoring guidance for specific employers. That, in turn, may have implied that employers whose activities were not subject to guidance could continue as normal. Whatever the reason, it will have further aggravated the blurring of the boundary between law and guidance that was a persistent feature of the pandemic.Footnote 55
The reality is that the guidance did not have any special legal status.Footnote 56 Much of its content was merely advisory. For example, the “rule” requiring people to stay at least two metres (or six feet and six inches) apart did not appear in any of the lockdown laws. It originated from a press statement given by the prime minister on 22 March 2020: “You have to stay two metres apart; you have to follow the social distancing advice.”Footnote 57 That one sentence neatly encapsulates the challenge that employers (and others) faced in understanding their responsibilities during the pandemic. If one must follow advice, then it is hardly “advice” at all; but, if a directive is mandatory, it requires a legal basis. The same tension runs throughout the employers’ guidance. The Government could have avoided this by introducing regulations requiring employers to adapt their workplaces under section 45C(1) of the Public Health (Control of Disease) Act 1984. Alternatively, the Secretary of State could have made COVID-19-specific regulations under section 15(1) of the Health and Safety at Work etc. Act 1974. That the Government chose not to concretise its guidance in this way means it comprised little more than “examples of sensible precautions”.Footnote 58 Moreover, because the Government later imposed statutory duties on some businesses (e.g. hospitality businessesFootnote 59 ), its omission to do so for employers generally seems deliberate.
Despite its rhetoric, the Government stopped short of giving legal force to its guidance. Nevertheless, there appears to have been a casual assumption that employers’ “general obligations” under “health and safety legislation, liability law [sic], and the law on negligence” required them to ensure their business was “COVID-secure”.Footnote 60 In other words, the guidance may have lacked statutory force, but it helped to define employers’ liabilities at common law. It may therefore have attained legal significance in another way.
B. Rationale
That COVID-19 posed a risk to people at work was clear from the start. Outbreaks before the first lockdown were linked to various workplaces (e.g. cruise ships,Footnote 61 conference centres,Footnote 62 banks,Footnote 63 hospitalsFootnote 64 ). A World Health Organization (“WHO”) briefing recommended that all workplaces take steps to prevent the transmission of COVID-19.Footnote 65 It found that SARS-Cov-2 transmission primarily occurs when an infected person comes into contact with another person in indoor, crowded and inadequately ventilated spaces.Footnote 66 Workplaces with “physical person-to-person contact” and “shared work accommodations” consequently reported higher rates of COVID-19.Footnote 67 Limitations on “social interaction” and “workplace density” were therefore considered effective in decreasing infection rates.Footnote 68 For a government that was committed to “following the science”,Footnote 69 this offered a compelling scientific foundation for its guidance.
However, not all workplaces were the same – and not all workers faced the same risks. Health and social care workers were more likely to become infected than workers elsewhere.Footnote 70 Moreover, occupations with higher degrees of physical proximity tended to have higher COVID-19 mortality rates.Footnote 71 Mutambudzi et al. found that essential workers comprised less than a third of their study cohort but had a higher risk of severe COVID-19 than non-essential workers.Footnote 72 The risk was highest among medical support staff and health and social care workers.Footnote 73 Adjustment for socioeconomic, work-related or health-/lifestyle-related factors saw little or no reduction in that risk.Footnote 74 There was therefore an “urgent need” to limit the spread of COVID-19 “especially in the health and social care sectors”.Footnote 75 After the pandemic, the Government confirmed that health and social care workers had been at increased risk of the disease and that some subgroups had a risk of death that was more than double what it was elsewhere.Footnote 76
The Government’s guidance for employers was therefore built on a credible foundation. There was a link between exposure to the SARS-Cov-2 virus in the workplace and COVID-19. Workers in some sectors were indeed at greater risk by virtue of their occupation, making COVID-19 an occupational illness in the true sense of the term. Yet anyone working in close physical proximity to others was at risk of contracting the disease, regardless of the nature of their job or workplace. The guidance was therefore not for nothing. It achieved significant “buy-in” from employers too. Between 10 April 2020 and 31 March 2022, employers made 44,458 notifications under the Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations 2013 (“RIDDOR”)Footnote 77 where they suspected occupational exposure to COVID-19.Footnote 78 There was a “strong level of intent amongst businesses” to make their workplaces COVID-secure, which may explain why the Health and Safety Executive’s (“HSE”) guidance for employers was viewed 9.7 million times during the pandemic.Footnote 79
The question remains whether the guidance had any legal significance. There was a casual assumption that the tort of negligence would provide a remedy to an employee injured by a careless employer in circumstances such as Fred’s. It is doubtful that that assumption withstands doctrinal scrutiny.
III. Employers’ Duties and Infectious Disease
A. Revisiting the Employer’s Duty
The employer–employee relationship has long been recognised as duty-bearing.Footnote 80 Each employer owes a personal and non-delegable duty “to take reasonable care for the safety of his workmen”.Footnote 81 That duty requires him to meet the standard of the “reasonable and prudent” employer, who takes positive thought for the safety of his workers in light of what he knows or ought to know.Footnote 82 The senior courts have applied that standard many times.Footnote 83 Its precise wording varies (e.g. “reasonable and prudent man”,Footnote 84 “reasonably prudent employer”,Footnote 85 “reasonably careful employer”,Footnote 86 “ordinary reasonable and prudent man”Footnote 87 ), but the same essential objectivity remains at its core. Claims brought by employees typically stand or fall on whether their employer breached that duty or whether that caused the relevant injury – that the duty exists at all is beyond doubt. This is true even where an employer omits to do something. Ordinarily, a person cannot be liable for a failure to act:Footnote 88 duties to provide benefits only arise where they are “voluntarily undertaken”, such as within the “domain of contract”.Footnote 89 Since employer–employee relationships exist within that domain, an employer will be liable for failing to take a precaution that a reasonable and prudent person would think “so obvious that it would be folly to omit it”.Footnote 90 This is important for present purposes because disputes would likely arise from an employer’s failure to take steps to prevent infectious disease, namely “faults of omission”.Footnote 91
That a “reasonable and prudent” employer can discharge his/her duty by avoiding “obvious folly” raised an interesting question during the COVID-19 pandemic. A rapidly developing scientific understanding of a novel coronavirus, and the continually shifting policy response to it, probably made it difficult for employers to discern exactly what might be “obvious folly” at any given time. Nevertheless, an employer’s failure to comply with government guidance may be useful evidence of negligence. In Stokes v Guest, Keen and Nettlefold (Bolts and Nuts),Footnote 92 Swanwick J. held that a reasonable and prudent employer must keep reasonably abreast of developing knowledge and “not be too slow to apply it”.Footnote 93 Failure to comply with government or industry guidance is therefore useful in establishing whether an employer has acted in a “reasonable and prudent” manner. Such failure may be probative of negligence,Footnote 94 although it is not conclusive: “The ultimate test is whether there is a lack of reasonable care in all the circumstances of the case.”Footnote 95 That said, mere guidance can gain legal significance by defining the “reasonable and prudent” standard.
At first glance, then, the assumption that employers owed a duty to protect their employees from COVID-19 had something to credit it. An employer’s duty arises automatically by virtue of his/her relationship with his/her employee and applies equally to misfeasance and nonfeasance. Government guidance can define what a “reasonable and prudent” employer should do in the circumstances. A failure to follow it might be “obvious folly” and, therefore, negligent.
B. “Occupational” and “Non-Occupational” Infectious Disease
Whether the duty includes an obligation to protect workers from the risk of infectious diseases in general circulation is, however, doubtful. There is no dispute that employers’ liability arises in cases of occupational disease (e.g. dermatitis,Footnote 96 pneumoconiosis,Footnote 97 asthma,Footnote 98 industrial deafness,Footnote 99 allergies,Footnote 100 mesothelioma,Footnote 101 asbestosis,Footnote 102 cancerFootnote 103 ). A common feature of these cases is that the claimant’s illness is occasioned by his/her negligent exposure to a harmful agent in the workplace as a direct result of the employer’s operations or activities. That agent might be dust, noise, lead, asbestos, radiation, a carcinogenic chemical, etc. Infectious diseases, by contrast, are caused by pathogenic microorganisms (e.g. viruses, bacteria, fungi, protozoa and parasites) that are not necessarily a direct result of an employer’s operations or activities. There will be some workplaces where workers will encounter infectious pathogens as a core part of their employer’s operations (e.g. laboratories, hospitals, care homes). However, for the most part, exposure at work to pathogens that are in general circulation will simply be one of the vicissitudes of life. There is reason to doubt, then, that exposure to an infectious disease that is circulating in the community constitutes a truly “occupational” risk.
An employer’s duty indisputably requires him/her to protect workers from occupational infectious disease. In Sanderson v Hull,Footnote 104 the claimant was employed as a turkey plucker and contracted campylobacteriosis. She alleged that the defendant failed to warn her about the risk of infection attendant upon handling poultry, so she did not wear gloves when doing so. Her claim failed on the question of causation, but, by implication, the Court of Appeal accepted that the defendant’s duty included an obligation to protect her from the risk in question. The risk of campylobacteriosis was a direct consequence of the employer’s operations and was, therefore, within its duty of care. Bass v Ministry of Defence Footnote 105 produced a similar result. Here, the dispute centred on Q-fever, which the claimant-soldier contracted on deployment in Afghanistan in 2011. He brought a claim for damages against the defendant, arguing that if it had carried out a proper risk assessment it would have prescribed doxycycline as malaria prophylaxis. If that had happened, then he would not have contracted Q-fever because doxycycline is effective prophylaxis for both malaria and Q-fever. His claim failed because the defendant was found to have carried out an appropriate assessment of the relevant risks in 2005. However, the defendant was taken, a fortiori, to owe a duty to the claimant to take reasonable steps to protect him from occupational diseases of military significance during his deployment in Afghanistan. Q-fever was such a disease and a direct consequence of the defendant’s operations, so it fell squarely within the Ministry of Defence’s duty to its employees.Footnote 106
There is no authority, however, for the proposition that an employer owes a duty in relation to infectious diseases generally. Indeed, there is a long history of the courts distinguishing occupational and “idiopathic” disease, thereby limiting liability to illnesses arising out of a worker’s employment. The case law on this point was decided under the Workmen’s Compensation Acts, which provided a statutory scheme of liability in respect of injuries occasioned by workplace accidents.Footnote 107 In Brintons Ltd. v Turvey,Footnote 108 the applicant’s husband contracted anthrax working in the defendant’s wool factory and subsequently died. The question was whether this was “injury by accident” for the purposes of section 1(1) of the Workmen’s Compensation Act 1897. If it was, then the applicant would be entitled to compensation; if it not, then her claim would fail. The House of Lords held by a majority that the deceased’s illness was “injury by accident” within the meaning of the 1897 Act. The Earl of Halsbury L.C. explained that the mechanism of injury was, for all intents and purposes, identical to a conventional accident.Footnote 109 However, the majority insisted that it did not endorse a doctrine that “all diseases caught by a workman in the course of his employment are to be regarded as accidents”.Footnote 110 Section 1(1) was deliberately intended to exclude “idiopathic disease” from its ambit.Footnote 111 If the worker had contracted flu at work there would have been no basis to claim compensation under the Act. Brintons v Turvey said nothing about how the applicant’s case would fare at common law. Employer’s liability in an occupational disease matter in the early 20th century therefore depended on how the court interpreted “injury by accident”.
In Fenton v J. Thorley & Co. Ltd.,Footnote 112 Lord Macnaghten said that an “accident” in this context is “an unlooked-for mishap or an untoward event which is not expected or designed”.Footnote 113 In subsequent cases, this framing precluded liability where applicants could not attribute illnesses to workplace mishaps or untoward events.Footnote 114 In Broderick v London County Council,Footnote 115 a claim brought by a sewage worker who contracted enteritis from inhaling sewer gas and subsequently suffered heart disease failed on the basis that he had not suffered “injury by accident”.Footnote 116 As Cozens-Hardy M.R. put it in Martin v Manchester Corporation Footnote 117 – a claim brought by a hospital porter who contracted scarlet fever – “accident” was the most critical word in the statute.Footnote 118 A disease in itself could not be an accident, but it might be incurred by one and thereby satisfy the statutory scheme.Footnote 119 In Grant v G&G Kynoch,Footnote 120 a worker contracted blood poisoning after being exposed to noxious bacilli through an abrasion on his leg. By a majority, the House of Lords held that the fortuitous alighting of the bacilli on the worker’s abrasion constituted an “accident”. In the Scots case Raeburn v Lochgelly Iron and Coal Co. Ltd.,Footnote 121 a miner who died from infective jaundice, which he contracted after exposure to rats’ urine at work, had suffered “injury by accident” as a result of “a fortuitous and undesigned contact of [his] hand or clothes, first with [the] infected matter, and then with his lips”.Footnote 122 Similarly, in Storey v Wellington Hospital Board,Footnote 123 a nurse who worked at a fever hospital and contracted scarlet fever was held to have suffered “injury by accident” within the meaning of the New Zealand Workers’ Compensation Act 1922 after coming into contact with the bacteria while caring for infected patients.
These authorities predate the discovery of the employer’s personal and non-delegable duty of care in Wilsons & Clyde Coal v English.Footnote 124 It is noteworthy, however, that the courts drew a boundary between what was recoverable under the workmen’s compensation scheme and what was not. Although “injury by accident” was the notional determinant, it is striking how often the uniquely occupational nature of the relevant disease was considered relevant. In Grant v Kynoch, Lord Birkenhead saw it as significant that the bacillus at issue was “very rarely met with except among the materials of the particular employment”.Footnote 125 Similarly, in Raeburn v Lochgelly Iron and Coal, the evidence showed that the type of jaundice from which the miner died was practically unknown outside coal mines. In Storey v Wellington Hospital Board, MacGregor J. likened the nurse working at a fever hospital to a workman on a building site and concluded that both worked in dangerous occupations with risks recognised as incidental to their employment.Footnote 126 It is reasonable to conclude that even if these cases had been decided under the common law, the result would likely have been the same.
The Scots case of Sorman v Royal Scottish National Institution Board of Management Footnote 127 may help to illustrate why. A nursing assistant brought an action against his employer after contracting pulmonary tuberculosis (“TB”) in the course of his employment. He encountered TB patients as part of his job and argued that his employer had failed to offer health screening to its nursing staff. The pursuer’s claim failed because he had not been at any appreciable risk of contracting the disease.Footnote 128 However, if he had been, then his case would have been founded on the “undoubted” duty of every employer to take reasonable care of his employees.Footnote 129 It was therefore established that an employer owes a duty to employees engaged in work that entails an appreciable risk of occupational infectious disease – such as the deceased worker exposed to anthrax in Brinton v Turvey. However, if an employee is at no greater risk of contracting a disease by virtue of his/her employment, Sorman v Royal Scottish National Institution Board of Management suggests that the duty does not apply.
This distinction was effectively endorsed by the Supreme Court in Kennedy v Cordia (Services) L.L.P.Footnote 130 The pursuer, a carer, slipped on an icy footpath and injured her wrist whilst making a house call. She sought damages from her employer claiming it had failed to assess the risk of such injuries in inclement weather. The Supreme Court held that the pursuer was not an ordinary member of the public free to choose when and where she went. She was contractually obligated to visit the defender’s clients in their homes to provide care services.Footnote 131 As such, she faced altogether different risks from an ordinary member of the public in the same weather conditions. Since the defenders had been aware of a history of similar accidents, the circumstances should have led a reasonable employer to reduce the risk of injury to its employees.Footnote 132
Kennedy v Cordia shows that a person who, by virtue of his/her employment, faces a risk of injury greater than that of an ordinary member of the public is owed a duty by his/her employer to attenuate that risk. Conversely, where an employee is at no greater risk of injury than a member of public, his/her employer is not obliged to reduce or extinguish the relevant risks. There is nothing especially new about this principle: it arguably underpins the decisions in Bradford v Robinson Rentals Ltd. Footnote 133 and Fytche v Wincanton Logistics Plc,Footnote 134 where the respective claimants’ employment status effectively determined whether their employers were liable in respect of their frostbite injuries.
There are two implications of all this. First, employers owe a duty to protect their employees from occupational infectious disease – that is, disease caused by a worker’s exposure to pathogens as a direct result of his/her employment. For example, a person employed to carry out experiments on viruses in a laboratory will be at risk of exposure to pathogens as a direct result of his/her employer’s activities. So, too, would a nurse employed to work on an isolation ward whilst caring for a patient with, say, Marburg virus disease. In those circumstances, there is no relevant distinction between an occupational infectious disease and a conventional occupational disease. An employer might therefore be liable for failing to protect the lab worker or the nurse from the relevant infectious pathogen(s) they encounter in the course of their jobs. Second, the law distinguishes risks faced by employees by virtue of their employment from those faced by ordinary members of the public. Where an employee faces risks by virtue of his/her employment, then the employer’s duty imposes an obligation to exercise reasonable care in respect of them. Where he/she faces the same risks as anyone else, the employer’s duty will not protect him/her from them. It is doubtful, then, that an employer would owe a duty in respect of an infectious disease in general circulation.
C. Infectious Disease and the Scope of the Employer’s Duty
It is surprising that there has not been a flurry of claims contesting this issue after the COVID-19 pandemic. One explanation might be that common infectious diseases rarely cause material damage.Footnote 135 For an injury to sound in damages, it must leave a claimant “worse off”;Footnote 136 the law will not compensate “trivial”Footnote 137 or “negligible”Footnote 138 injuries. Most common infectious diseases, such as colds and flu, will not leave their sufferers worse off in this sense. COVID-19 was no exception: most people who contracted it experienced mild, short-term symptoms with no long-term consequences.Footnote 139 They would not, therefore, meet the threshold for actionable damage. But some people did die from COVID-19 (as they can from flu and other diseases); others suffered serious, long-term complications (e.g. lung fibrosis, pneumonitis, pulmonary embolism, ischaemic stroke, myocardial infarction and post-intensive care syndromeFootnote 140 ). There are also cases of post-viral symptoms with no pathophysiological basis, namely “long COVID”.Footnote 141 Some cases might therefore conceivably exceed the “de minimis” principle, although they will be rare. Another explanation for the lack of claims is the inherent cost or evidentiary difficulties. Claimants would find it hard, if not impossible, to establish that their employers’ carelessness caused them to contract an infectious disease. A worker might contract flu at her office, but, equally, she might catch it on the bus, in the gym, at the supermarket and so on. Even if it were possible, establishing causation in these circumstances would make the principle in Fairchild v Glenhaven Funeral Services Footnote 142 seem like a walk in the park. A multitude of causal agents originating from any number of sources in myriad locations may cause a wide range of upper respiratory tract infections (“URTIs”), including flu. In relation to COVID-19, contact tracing might have made it easier to establish causation, yet, even then, the disease’s well-established “bidirectional causal pathways” would have made it difficult to attribute it to occupational exposure as a matter of fact.Footnote 143 Whether the costs and risks of litigation would have been worth it remains an open question. A third explanation might be that employers routinely settle disputes of this kind. Yet, considering the challenges inherent in proving actionable damage and causation, settlements are likely to be vanishingly rare.
Only two cases have examined this issue to date. The first is Farnham v East of England Ambulance Service,Footnote 144 which is currently paused pending the UK COVID-19 Inquiry’s Module 3 report. The claimants were healthcare workers who contracted COVID-19 in the course of their employment and suffered complications. They claim that their employers were negligent in failing to protect them from the disease. The employers deny negligence. The second is Edwards v 2 Sisters Food Group Ltd.Footnote 145 The claimants in this case caught COVID-19 whilst working at the defendant’s chicken processing factory. They argue that the defendant was negligent in failing to take steps to mitigate the risk of COVID-19 in an environment in which employees worked “shoulder to shoulder” with each other. Both cases remain live at the time of writing and neither yet carries any precedential value. That each defendant-employer owed a duty of care to its workers in respect of the risk of COVID-19 is, apparently, uncontentious.
There is, however, an important distinction between the two cases. Farnham v East of England Ambulance Service is the first stage of the “Covid Healthcare Workers’ Litigation” brought on behalf of 300 claimants. They worked in frontline National Health Service (NHS) roles and were routinely exposed to the risk of COVID-19 as a direct result of their employers’ activities. For them, COVID-19 was unquestionably an occupational infectious disease. Doctors and nurses working during the pandemic were not free to avoid hospitals or care homes, nor could they pick and choose which patients they cared for. The risks they faced distinguished them from ordinary members of the public. The weight of authority suggests that employers in these circumstances owe a duty to their workers to take reasonable steps to protect them from those risks. By contrast, the claimants in Edwards v 2 Sisters Food Group handled poultry for the food industry. Their exposure to coronavirus disease was not a direct result of their employer’s activities; it was entirely incidental to their work. For them, COVID-19 was not an occupational infectious disease.Footnote 146 In allowing the claimants’ appeal against an award of summary judgment against them, Sir Peter Lane J. said that “the causation issue stands front and centre [in] this case”Footnote 147 and concluded that the case should proceed to trial. Respectfully, His Lordship overlooked the logically prior question of whether the defendant-employer owed a duty to protect the claimants from the risk in the first place. As we have seen, there is no case law to support that proposition.
The widely held assumption that the employer’s duty arises automatically in employer–employee disputes may contribute to a reluctance to question its application in cases such as Edwards v 2 Sisters Food Group. Instead of the distinction between “occupational” and “non-occupational” disease defining the boundary between “duty” and “no duty” situations, it is submitted that a more amenable solution might be to say that damage occasioned by infectious diseases in general circulation does not fall within the scope of an employer’s duty. In this way, we can preserve the employer’s duty for the sake of doctrinal fidelity but adapt its boundaries where appropriate.
The idea that duties can have a limited scope is nothing new. In Caparo Industries Plc v Dickman,Footnote 148 Lord Bridge said that it is never enough to ask whether A owes B a duty of care: “It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B […].”Footnote 149 A duty to take reasonable care to prevent a person from suffering, say, personal injury does not ordinarily include within its scope an obligation to protect him/her from pure economic loss.Footnote 150 Duties may therefore be limited to particular kinds of damage (e.g. personal injury; economic loss; psychiatric damage). There is also authority to suggest they can be limited in respect of the same kind of damage.
In South Australia Asset Management Co. v York Montague Ltd.,Footnote 151 the disputes concerned negligent valuations of properties on which the plaintiffs were to advance mortgages. The defendant valuers overestimated the value of the properties and the plaintiffs loaned money to their clients to fund their purchase. They would not have made the loans if they had known the properties’ true values. The mortgagors subsequently defaulted and the plaintiffs suffered economic loss. Meanwhile, the property market had fallen substantially, increasing the scale of the plaintiffs’ losses. The House of Lords held that the defendants’ duty was limited to the foreseeable consequences of their valuations being negligently wrong. The fall in the value of the property market therefore caused losses that were outside the scope of the defendants’ duties of care and, consequently, the plaintiffs could not be compensated for them. Lord Hoffmann (with whom all their Lordships agreed) said that a plaintiff must show “that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered”.Footnote 152 His Lordship said that a duty that went further than that would not be “fair and reasonable as between the parties”.Footnote 153 The plaintiffs’ damages in South Australia Asset Management v York Montague were therefore limited to the losses stemming from the negligent valuations. The Supreme Court went on to apply the same reasoning in BPE Solicitors v Hughes-Holland Footnote 154 and Manchester Building Society v Grant Thornton,Footnote 155 both of which concerned the scope of duties owed by professional advisers in commercial disputes. In Meadows v Khan,Footnote 156 it invoked the “scope of the duty” principle in a clinical negligence case, demonstrating that there may be occasions outside commercial adviser–advisee relationships where it will delimit the boundaries of a defendant’s duty of care.Footnote 157
Employer–employee disputes offer one such occasion. There will obviously be cases where an employer–employee relationship maps neatly onto an adviser–advisee dynamic of the variety found in South Australia Asset Management v York Montague. For example, if an employer of laboratory workers experimenting on hantaviruses advises them that it has taken steps to protect them from hantavirus-related illness, it would be beyond the scope of its duty if one of those workers later contracts flu at work. Flu is not caused by a hantavirus and therefore the worker’s illness would not be the realisation of a risk that was the subject of his/her employer’s advice. Even where an employment relationship does not correlate with an adviser–advisee dynamic, there must be a limit on the hazards for which an employer can be responsible. As we have seen, employers owe a duty to protect their employees from occupational diseases, including occupational infectious diseases. A nurse who works on an isolation ward treating patients with, say, Lassa fever would be subject to such a duty of care. However, the risk that an employee might contract an infectious disease that is in general circulation and therefore does not arise out of, or in connection with, the employer’s operations or activities, plainly lies beyond the scope of its duty. Employers cannot underwrite every risk that their employees might face in the workplace. All that matters is the purpose of the duty and whether the loss represents the fruition of the relevant risk.Footnote 158 If it does, then the claimant’s damage falls within the scope of the defendant’s duty; if it does not, then the claimant’s claim must fail. The “scope of the duty” principle in this way offers a coherent justification for the legal difference between occupational (infectious) disease on one hand and infectious diseases in general circulation on the other.
D. Lessons from Statute
The same limitation on the scope of an employer’s duty appears in various statutory schemes. Section 1(1) of the Employers’ Liability (Compulsory Insurance) Act 1969 requires every employer to insure “against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment […]”.Footnote 159 Variations on the same formula also appear in secondary legislation. For example, the Control of Substances Hazardous to Health Regulations 2002Footnote 160 specifically include “microorganisms” and “biological agents” within their ambit,Footnote 161 but regulation 2(2) excludes exposure that does not arise out of, or in connection with, an employee’s work.Footnote 162 Similarly, the Management of Health and Safety at Work Regulations 1999Footnote 163 say that employers shall make a “suitable and sufficient” assessment of the risks to their employees’ health and safety.Footnote 164 That duty is limited to risks “to which [workers] are exposed whilst at work” and to risks to non-employees “arising out of or in connection with the conduct by [the employer] of his undertaking”.Footnote 165 Where risks to employees are concerned, regulation 3(1)(a) suggests that employers must assess every risk to health and safety irrespective of whether they might be legally responsible for the consequences thereof. The “whilst they are at work” phrase is wider than the “arising out of or in connection with” formula and might feasibly include the risk of employees being exposed to infectious diseases in the workplace. However, considering the effect of section 69 of the Enterprise and Regulatory Reform Act 2013, it is difficult to discern what the legal significance of this would be. If it is right that the employer’s duty does not include infectious diseases in general circulation within its remit, the Management of Health and Safety at Work Regulations 1999 appear to require employers to assess risks for which they cannot in fact be legally responsible.
Another example is RIDDOR, which requires employers to report certain adverse incidents occurring in the workplace to the HSE.Footnote 166 RIDDOR also imposes a duty on a “responsible person”Footnote 167 to report certain occupational diseases (e.g. carpal tunnel syndrome,Footnote 168 dermatitis,Footnote 169 asthmaFootnote 170 ), but it limits that obligation to occasions where the work involves “significant” or “regular” exposure to a relevant causal agent.Footnote 171 Employers must also report “any disease attributed to an occupational exposure to a biological agent”,Footnote 172 which suggests that illness arising from exposure pathogenic microorganisms such as viruses, bacteria, parasites, etc. is reportable. However, regulation 9(1) refers explicitly to occupational exposure – that is, exposure “arising out of or in connection with” an employee’s employment. The exclusion of exposure to biological agents that are otherwise in general circulation once again seems deliberate. It also suggests that some of the more than 40,000 RIDDOR notifications made in respect of COVID-19 may have been in error.
Perhaps the best statutory instantiation of the distinction between occupational infectious diseases and infectious diseases in general circulation appears in the Social Security Contributions and Benefits Act 1992. Section 94(1) provides for the payment of “industrial injuries benefit” to an “employed earner” who suffers personal injury caused by an accident “arising out of and in the course of his employment”. This entitlement extends to workers who suffer a “prescribed disease” due to the nature of their employment.Footnote 173 A disease may be so prescribed if “it ought to be treated […] as a risk of [workers’] occupations and not as a risk common to all persons”.Footnote 174 The list of prescribed diseases includes anthrax; tuberculosis; hepatitis A, B and C; Lyme disease; leptospirosis; and Orf – along with references to the occupations where workers may be exposed to them.Footnote 175 Nowhere do the regulations mention diseases that one might encounter outside of a specific occupational context, such as flu, pneumonia and COVID-19.
It is difficult to resist the conclusion that the assumptions underpinning the Government’s guidance for employers lacked any legal basis. It requires us to accept that an employer’s duty includes within its scope an obligation to protect his/her employees from the risk of contracting a disease that is in general circulation. Nowhere in the English common law is there authority to support such a contention, nor does any of the primary or secondary legislation governing health and safety at work entertain it as a possibility. The Government’s guidance therefore lacked any legal or juridical foundation.
IV. Evaluating the Case for Employers’ Liability for Infectious Disease in General Circulation
The Government’s guidance for employers during the COVID-19 pandemic rested on a misunderstanding of the scope of an employer’s duty of care in negligence. It is true that where COVID-19 is an occupational disease (e.g. among healthcare workers) the employer’s duty cannot be disputed – as the “Covid Healthcare Workers’ Litigation” should eventually demonstrate. Yet, outside instances of specific occupational risk, it is doubtful that any claims brought by workers injured after contracting COVID-19 in the workplace will succeed. This bodes ill for the claimants in Edwards v 2 Sisters Food Group and is bad news for any worker who contracts COVID-19 (or any other infectious disease in general circulation) in the workplace and hopes to recover damages for harm caused by his/her illness. For that reason, the long tail of post-pandemic litigation that the Government’s guidance ostensibly prefigured may never in fact occur.
The guidance would undoubtedly have had performative significance. As the International Labour Organization (“ILO”) recognised, the “reactivation of economies” depended on workers feeling “safe and reassured” upon returning to their workplaces after the pandemic.Footnote 176 What mattered, then, was the ritualisation of safety – whether any of those rituals served any meaningful purpose is beside the point. Workers needed to feel safe and the publication of government guidance for employers, who were asked to signal their compliance by displaying a “Staying COVID-19 Secure” poster,Footnote 177 will have supported that objective. Workers who believed that their employers had a legal duty to protect them from COVID-19 may have felt safer in the workplace and employers who feared the consequences of breaching that duty may have been likelier to comply. Yet the misunderstanding on which the guidance was predicated may have had profoundly negative consequences. We may never know how many employers incurred costs in adapting their workplaces to comply with the guidance or in suspending or closing their operations entirely, out of a misplaced fear of liability. We may never fully appreciate how many people ended up being furloughed or losing their jobs because the costs of “COVID security” were too great for their employers to bear. Nor are we likely to find out how many injured workers have embarked on a wild goose chase pursuing compensation. We might also wonder about the detrimental consequences of illusory duties that in fact possess no legal significance. The misunderstanding in the guidance may have been about a technical point of law, but its practical, social and economic, and doctrinal consequences may be far-reaching and incalculable.
Yet should the law require employers to take steps to protect their workers from the risk that they might contract a “non-occupational” infectious disease in the workplace? Such a policy would undoubtedly have found favour during the COVID-19 pandemic. Throughout the crisis, more than 40 per cent of respondents said they were “very” or “somewhat” scared of COVID-19.Footnote 178 At times, that figure reached as high as 60 per cent, whilst a third of people admitted that they were still scared of COVID-19 in the summer of 2022 – a full year after the lockdown restrictions ended in England.Footnote 179 Contemporary polling data showed overwhelming support for non-pharmaceutical interventions: more than 90 per cent of respondents supported the first lockdown and around a third doubted that the country would ever “return to normal”.Footnote 180 In separate polling, Ipsos found substantial support among workers for measures to stop the transmission of COVID-19. Eighty-five per cent of people agreed that workers should be fully vaccinated against COVID-19, 79 per cent thought workers should undergo frequent testing for coronavirus disease and 77 per cent supported the wearing of masks in the workplace.Footnote 181 There was a widespread fear of the disease and overwhelming support for a “new normal”. It does not take much imagination to anticipate what most workers would have thought of a legally enforceable duty to protect them from COVID-19 during the pandemic. Even in the post-COVID era, a duty to protect workers from illness in the workplace might retain popular support.
The problem with such a duty is that it extends the boundaries of the law so far that even risks beyond the reach of the “reasonable and prudent” employer can become the subject of litigation. The essential rationale for the employer’s duty of care is that he/she must do something that would have a measurable effect in mitigating a risk that he/she has created and that is amenable to his/her control. Yet there are some hazards that can occur in the workplace that most employers can do nothing about (e.g. lightning strikes, earthquakes, meteors). To impose a duty on an employer to mitigate risks of that sort makes as much sense as King Canute controlling the ebb and flow of the tide. For a duty to have any meaning, it must necessarily remain correlative with the risks that its bearer creates; to impose a duty where there is no such correlation is to create by implication an obligation to rescue which is at odds with English law. There is no doubt that some employers will expose their workers to hazards that originate outside their control: an employer of road workers, for example, may owe a duty to protect them from sunburn/heatstroke whilst they carry out repairs during the summer. Similarly, an employer of an engineer who repairs radio masts would probably have to take steps to protect him from lightning strikes. In cases such as these, the employer’s operations or activities create or adopt risks that undoubtedly fall within the scope of his/her duty. However, employers engaged in different operations or activities will not create the same risks, although they will exist as incidental hazards facing everyone regardless of their employment status. For example, a porter who walks between hospital buildings might suffer sunburn in hot weather or be struck by lightning or hit by a meteorite. The idea that his/her employer’s duty would include an obligation to protect him/her from these sorts of risks assumes that the employer is effectively responsible for anything bad that might happen in the workplace. A duty of this sort would create no-fault compensation by stealth, which defies the logic of English law’s fault-based system of liability.
An obvious counter is that the duty’s “personal and non-delegable” nature has long meant that employers’ liability has been stricter in English law than the fault-based tradition might suggest. If an employer can be liable for injuries caused to its employee by someone not in its employFootnote 182 or for the consequences of another worker’s pranks,Footnote 183 then the meaning of “fault” has always been malleable in this connection. Furthermore, COVID-19 was a pandemic disease that justified an unprecedented global response. If the Government had to take extraordinary measures to save lives, why should employers escape liability for failing to comply with its guidance? Though superficially persuasive, this line of argument soon runs into difficulties. First, it is undoubtedly true that an employer can be liable for injury for which it is not literally “at fault”. But, in any case of employers’ liability, a worker’s injury will arise as a result of some negligence occurring in connection with his/her employer’s operations or activities.Footnote 184 Where an employee’s workplace injury can be attributed to something else entirely, his/her employer will not be liable for it.Footnote 185 The courts plainly recognise a limit on the scope of employer’s liability, even if they tend towards a more generous interpretation of “fault”. Second, the notion that COVID-19’s pandemic scale should somehow justify an exception to the general rules governing the duty of care falters under scrutiny. The HSE drew a similar clumsy distinction between “pandemic” influenza and “ordinary” flu in its workplace guidance.Footnote 186 Ordinary flu is an “unpleasant illness” that runs its natural course and is not life-endangering; pandemic influenza is “markedly different” and most people will have little or no immunity to it.Footnote 187 With respect, this relies on a category error. If COVID-19’s pandemic scale merited differential legal treatment, then we must accept the prospect of employers being liable for failing to protect their workers from COVID-19, but not from other (perhaps far more serious) diseases in general circulation (e.g. whooping cough, meningitis, measles). If its presumed lethality, or potential for adverse long-term health outcomes, distinguishes it, then what about influenza, pneumonia or even common colds, which, in some cases, can also lead to death or serious complications? If it is COVID-19’s novelty that makes a difference, then we would have to accept that employers owe duties in respect of “new” diseases, but not those that have been in circulation for a long time. Employers would therefore have to take active steps against risks they cannot reasonably foresee. We might also come unstuck when it comes to what exactly makes a disease “new”. COVID-19 was caused by a novel coronavirus, but coronaviruses themselves are nothing new. None of these reasons convincingly supports the proposition that COVID-19 merited a special occasion for tort liability that singled it out from other infectious diseases. COVID-19 is, for these purposes, no different from any other disease in general circulation.
There will always be infectious diseases that defy easy categorisation. Norovirus can, at times, be an occupational infectious disease, whilst at others simply be in general circulation. Writing about the Control of Substances Hazardous to Health Regulations 2002, Bennett speculated that an employer might ignore a mild flu outbreak in the workplace but could incur liability for failing to tackle a norovirus outbreak spreading rapidly through the workforce.Footnote 188 This is likely to be true in “institutional” workplaces where norovirus may be an occupational infectious disease (e.g. hospitals, care homes, prisons). But Bennett’s distinction would make no material difference in other workplaces, where norovirus is unlikely to constitute a specific occupational risk – even where there is a widespread outbreak. The key test is whether a worker is employed specifically to work in an environment where an infectious disease is a known occupational hazard, namely where he/she will encounter the pathogen in question or with people suffering from it. Norovirus among workers at, say, a clothing factory may lead to high rates of absenteeism and long-term health complications in rare cases, but this does nothing to alter the fact that it was a disease in general circulation and not an occupational hazard.
Another interesting example is “freshers’ flu”, the colloquial name for the non-specific illnesses common among first-year university students.Footnote 189 What would happen if a university worker, such as a warden in student accommodation, contracted freshers’ flu and suffered health complications? On one hand, freshers’ flu fits neatly into the category of occupational infectious disease: it is directly linked to a university’s activities and poses a health risk to workers that follows from their employment relationship. On the other, “freshers’ flu” is not a disease in itself, but, rather, a catch-all term for a cluster of symptoms, any combination of which may present among students in the first weeks of the academic year. Freshers’ flu is therefore more of a “symptomatic vibe” than a clinical diagnosis. As we have seen, occupational infectious diseases are typically clearly defined conditions subject to clinical testing, diagnosis and treatment. The same cannot be said for freshers’ flu, which poses an intractable evidential problem when it comes to delineating its constellation of symptoms from other infectious diseases in general circulation. “Freshers’ flu” is therefore insufficiently specific as a diagnosis to qualify as an occupational infectious disease.
There may be times where there is sufficient specificity to find a duty. The Australian case Karpik v Carnival plc Footnote 190 examined whether the defendant cruise line owed a duty to passengers who contracted COVID-19 aboard the ship, the Ruby Princess, in March 2020. Finding for the claimants, the court held that a “special relationship” existed between a ship’s operator and its passengers. Stewart J. explained that passengers on a ship are essentially “captives” reliant over a long period on its operator to provide shelter, food, water and medical assistance and return them safely to shore.Footnote 191 The “peculiar” nature of that relationship influenced the scope of the defendant’s duty and brought COVID-19 within it. The same must surely apply to employees working in similar “peculiar” environments where they are akin to “captives” isolated from the outside world (e.g. polar research stations, oil rigs, offshore wind farms). Cruise ships are notorious for norovirus outbreaksFootnote 192 and the fact that workers aboard such vessels belong to an isolated and identifiable class would arguably underscore that their employers owe them a duty to protect them from infection. In such “peculiar” workplaces, it is hard to speak of “diseases in general circulation” when the nature of the work isolates employees from the communities where those infections spread. It may be easier to draw infectious disease into the scope of an employer’s duty in those circumstances than it would in more conventional contexts. That said, norovirus or flu could be just as easily understood as occupational infectious diseases in those circumstances, thereby eliminating the need to treat jobs in “peculiar” workplaces as a distinct category of employment. At any rate, such specificity would undoubtedly inform the scope of an employer’s duty one way or another.
Policy reasoning has fallen out of favour in the Supreme Court era.Footnote 193 One consequence of Robinson v Chief Constable of West Yorkshire Police is that duties are assumed to be essentially automatic in established relationships, such as that between an employer and employee. The downside is that the duty resembles an open-ended obligation on employers to protect employees from the risks of anything bad befalling them in the workplace. In a vast majority of cases, this approach is perfectly sound; however, there are occasions where an “automatic” duty is not, to borrow from Lord Bridge, “fair, just and reasonable”.Footnote 194 Employers cannot fairly insure against all risks; such an obligation would impose the sort of “intolerable burden” that used to rule out duties of care entirely.Footnote 195 If the employer’s duty included an obligation to prevent his/her workers from contracting infectious diseases in general circulation, this would impose costs that would disincentivise their engagement in productive economic enterprises at all. Stapleton refers to this as the “overinternalisation” problem.Footnote 196 Its effect would likely be to increase insurance premiums, suppress recruitment, encourage the dismissal of vulnerable workers and throw open the floodgates of litigation. A duty framed in this way would also incentivise dubious claims for compensation that would be hard to distinguish from legitimate actions brought by genuinely unwell claimants. Policy arguments of this kind are increasingly unfashionable, but they nevertheless continue, on rare occasions, to provide valid bases on which to assert duties’ fair, just and reasonable limits.
We often say that “a bug is going around” when widespread illness in our community comes to our awareness. The idea that infectious diseases circulate in the community, and that we will from time to time fall ill, is a familiar part of the human experience. Anyone who survives beyond birth will be exposed to pathogens that will make them sick, often several times a year. Sometimes that sickness will pass quickly and we will return to full fitness; at other times, illness will be serious or have complications that inhibit recovery. None of this is contentious: that someone can catch an infectious disease, fall ill and then either recover or suffer long-term complications, or even die, is part of life. The suggestion, then, that a person might owe a legal duty to protect others from the risk of illness (outside specific contexts in which they would be deemed to have assumed responsibility for doing so) seems absurd.
The Government’s response to the COVID-19 pandemic linked the spread of the disease to moral failings on the part of ordinary people. It forbade people from leaving their homes to “save lives”,Footnote 197 urged people using grisly posters depicting COVID-19 patients on ventilators to “look them in the eyes” and “tell [them] you never bend the rules”,Footnote 198 and warned them not to “kill your gran” by catching coronavirus and passing it on.Footnote 199 COVID-19 was in this way cast as more than just a bug doing the rounds; it was a disease that owed its spread to the moral turpitude of other people. Against this backdrop, it is not hard to see how the idea that a person might be legally responsible for the illness or death of someone else could gain traction. However, this loses sight of the reality that most employers are no more to blame for exposing their workers to infectious pathogens than you and I are for unwittingly spreading flu to someone else. This nuance was lost in the exigencies of the time, but it should guide how we respond to the next pandemic.
V. Conclusion
In closing, we return to Fred, the Cosmic Carpets employee who contracted COVID-19 in 2020. At the outset, we asked whether he might have a claim for damages against Cosmic Carpets. This article has shown that the answer to that question is, and should be, “no”. The reason is simple: his injury falls outside the scope of his employer’s duty of care.
Government guidance for employers published during the COVID-19 pandemic misunderstood the limits of employers’ liability. There is no dispute that an employer must protect his/her employees from the risk of personal injury and that that includes an obligation to protect workers from occupational infectious disease. However, that duty has never extended to impose an obligation on employers to protect workers from the risk of infectious diseases that are in general circulation. If Fred worked in a laboratory experimenting with the SARS-COV-2 virus, his employer would indisputably have owed a duty to mitigate the risks inherent in his job. But Fred’s exposure to the virus was merely incidental to his work at a carpet factory. It was not a direct result of his employer’s operations or activities, nor was he at any greater risk by virtue of his employment. Fred’s claim would therefore fail for want of an applicable duty.
Fred’s case offers a cautionary tale to anyone anticipating a long tail of post-COVID-19 litigation. The misunderstanding at the core of the Government’s guidance may have had significant implications for employers, workers and anyone seeking to grasp the legalities that underpin their relationship. This article has sought to clarify the scope of the employer’s duty so that the limits of liability for infectious disease can be better understood in the post-COVID-19 era. In addition, it has shown that the normative case for expanding that scope is unpersuasive. The employer’s duty should be limited to the risks associated with his/her operations or activities. The risk of contracting an infectious disease that is in general circulation is simply one of the vicissitudes of life and, therefore, beyond the scope of employers’ liability.
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