Key takeaways

• The HSE found that Burnley College had not followed social distancing requirements, had failed to notify close contacts of positive cases, encouraged those who tested positive not to report close contacts and did not monitor or enforce the wearing of face coverings by some employees.
• However, on the balance of probabilities, it was not possible to conclude that the employee's exposure to the virus occurred at work. Community infection rates were very high at the time. There was no specific, identifiable incident that led to her increased risk of exposure and no clear link between her work and her exposure.
• For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.

In more detail

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) require employers to report and keep records of work-related accidents which cause deaths and certain serious injuries, of diagnosed cases of certain industrial diseases, and of certain dangerous occurrences (incidents with the potential to cause harm).

Donna Coleman, an employee of Burnley College, tested positive for COVID-19 in December 2021 and died in hospital in January 2022. During this period, Lancashire was in Tier 3 ("Very high alert"), which meant households were not permitted to mix indoors, a maximum of six people from different households to meet outdoors, hospitality venues were closed and those who could be advised to work from home. Education settings, such as Burnley College, were permitted to remain open.

After her death, the HSE began an investigation to ascertain whether her death was reportable under RIDDOR. In order to meet the reporting threshold in cases of COVID-19, there must be reasonable evidence linking the nature of the person's work with the increased risk of infection. On the balance of probabilities, the HSE concluded it could not say that Ms. Coleman's exposure to the virus took place at work. There was no specific, identifiable incident that led to an increased risk of exposure and no clear link between work and the exposure. Further, at the time the employee tested positive, the general levels of COVID-19 infection in the community were very high. Her death was not, therefore, reportable under RIDDOR.

The HSE found that Burnley College had not taken all reasonably practicable steps to control COVID-19 in the workplace at the time of Ms. Coleman's infection and death. Video evidence showed staff in meetings without face coverings, and social distancing requirements were not followed in both the meetings and the social activities that took place on-site during this period. Employees were encouraged not to report close contacts when they tested positive, and those who were close contacts were not told.

The HSE will send a Notice of Contravention letter regarding the failings which were found and the College will be required to pay a fee to the HSE for administrative breaches. Since Burnley College took steps in early 2021 to improve their control measures in the workplace and the government removed the requirement for all employers to explicitly consider COVID-19 in their health and safety risk assessments in April 2022, no further action will be taken. However, Ms. Coleman's family and her union have said they intend to appeal the HSE's decision.

A letter from the HSE to Ms. Coleman's union confirming the result of their investigation is here.