Many businesses are wondering if they can expect Employers’ Liability claims to increase. Our experts suggest that it’s perhaps too early to tell. The economic downturn and challenging regulations and legislation could pave the way for a litigious culture to flourish. Yet, with so many hospitality workers still on furlough or going through redundancy, there is a smaller pool of employees who will be able to make a claim.
Why might Employers’ Liability claims increase?
There are many reasons why Employers’ Liability claims may increase.
Money is tight
It sounds cynical, but some individuals may seek the opportunity to make some money. Those who have suffered from the financial impact of COVID-19 may feel the need to make a claim where they otherwise might not have done. If an individual is in with a chance to earn thousands (if not more) by suing their employer, the current economic situation may influence their decision.
Employees are on the front line
Hospitality workers may have a higher chance of contracting COVID-19. Their exposure to others is increased and, if the working environment is not safe, they may blame their employer for not looking after their safety well enough.
It is unlikely, however, that an individual could prove exactly where they contracted coronavirus. Anyone trying to claim they contracted COVID-19 from a specific place must have sufficient evidence.
For example, if several employees and customers of a certain pub tested COVID-19 positive, it would be significantly easier to prove a common link than if just one employee tested positive.
There’s increased nervousness
It’s understandable that some members of staff might feel nervous or uncomfortable returning to a busy, public-facing working environment. Despite every effort to make a workplace COVID-19 safe and secure, some individuals may just prefer to continue working from home or remaining on furlough for the time being.
This could lead to some employees making vexatious claims, perhaps claiming they must remain off work due to an accident or incident.
Staff may feel disgruntled
Hospitality businesses must ensure they do everything they can to support their workforce. Those with reduced hours, extended furlough or experiencing redundancy may be understandably frustrated and distressed. Unfortunately, if a business doesn’t handle these difficult scenarios with empathy and sensitivity, this could result in employees (or ex-employees) feeling disgruntled.
Disengaged, unmotivated or unhappy employees are more likely to make a claim against their employer. Mitigate against this by ensuring you always treat employees with respect – whatever the situation.
Mental health issues are rising
Whether your employees are working from home or returning to a physical working environment, make sure their mental health is top of your priority list.
Work-related stress and mental health issues caused by a workplace situation should be taken as seriously as any physical incident. Communicate effectively with all employees, finding out how they’re feeling and what issues they may be experiencing. Do all you can to support and help your staff and, as always, document the measures you’ve taken and what results have been achieved.
PPE, face coverings and safety procedures
New legislation surrounding COVID-19 safety and the mandatory wearing of face coverings and PPE could cause a spike in Employers’ Liability claims.
As an employer, it is your responsibility to ensure your staff are following the correct procedures. In legal terms, this means ensuring that all staff of venues that provide food or drink to members of the public wear face masks in public areas (unless a member of staff is exempt – see below). Staff won’t need to wear face masks if there is a physical barrier or screen between an employee and other members of the public, though it’s still advised they do so.
Hospitality businesses ought to provide face coverings for their staff, though you should also allow staff to use their own face coverings if they would prefer. However, it’s simply not good enough to assume your staff will follow instructions. If members of the team are not following the law and the safety procedures you’ve put in place, you must ensure this is enforced. Repeated flouting of the rules must not be tolerated and you must document your response towards staff who don’t adhere to your policies and procedures.
Remember – as an employer, you’re vicariously liable for any acts of negligence from employees who don’t take your health and safety policies seriously. Wearing a face covering while working in a retail or hospitality venue is a legal requirement. Unless an individual is exempt, there’s no choice in the matter. Further information on the legalities of enforcing employees to wear face coverings can be found here.
Face mask exemptions
Employees who are exempt from wearing a face covering should not be discriminated against or told to wear a covering that could cause them physical or mental distress. Employers should ensure employees who are exempt from wearing a face covering sign a document explaining the situation. This will demonstrate that the employer in question has considered all possible issues surrounding the exemption. Where possible, an individual risk assessment should also be considered. This will take into account the individual circumstances of the employee in question, and what steps can be taken to ensure both their safety and the safety of other employees and customers.
It’s particularly important employers instruct employees how to use face coverings effectively and safely. This includes advice on how to put on and remove face coverings. It also advises on how to wash or dispose of face coverings safely.
Will the FCA test case impact Employers’ Liability claims?
The short answer is no, it won’t. The FCA test case centred around Business Interruption claims. The verdict largely fell in favour of hospitality venues. However, there is still a percentage of businesses whose claims are still not being paid.
We must not underestimate the impact on insurers, though. Large amounts of claims, such as COVID-19 related Business Interruption claims, are likely to have a big impact on an insurer. This may make other insurance policies, such as Employers’ Liability cover, more expensive in the future.
This shouldn’t make a colossal impact on hospitality businesses, however. The main point of concern is mitigating risk and ensuring staff (and, of course, customers) are thoroughly looked after.
What happens if an employee makes a claim?
Each case will be examined individually. The results will vary on a case by case basis. Businesses must be able to prove they have done all that is reasonably practicable to keep their people safe.
We may begin to see a rise of Employers’ Liability cases as other cases are brought to light. If a claim against an employer is successful, this case could encourage similar claims to be made. Similarly, if specific types of claims (such as employers claiming they contracted COVID-19 at work, and being unable to adequately prove this) are dismissed, it’s likely we won’t see a huge spike in future cases of this kind.
How can hospitality venues minimise Employers’ Liability claims?
There are two main answers to this question:
- Mitigate risk
- Document evidence
Lower the chances of an employee making a claim against you by thoroughly assessing risk. Put control measures in place to mitigate the chance of an accident or incident occurring. And make sure you document this. Have sufficient evidence that you have done all you can to keep your employees safe. Then it’s unlikely a claim made against you will be successful.
Risk assessments are the best way to ensure you’ve considered all risks. You should also put suitable actions in place to mitigate them. Document risk assessments and all other safety procedures and policies. This will prove you’ve taken risk management and the safety of your employees seriously.
Work with the experts
During these challenging times, it’s tough to go it alone. Hospitality venue owners and managers may feel confused by the regulations and guidelines. There always seems to be uncertainty around every corner.
Let an insurance broker take the strain. When you work with NDML, you’ll have experts on hand when you need them. With risk management services, HR and employment advice and a dedicated claims team available, you can be sure you’re getting the best possible service. Sound good? Get in touch with the team for a confidential conversation.