Covid-19 health and safety prosecutions - understanding the risks

Businesses have a legal responsibility to keep their employees and any non-employees they interact with safe under the terms of the Health & Safety at Work etc. Act 1974. This includes in relation to COVID-19, and businesses can be prosecuted for failure to take reasonable measures to protect employees and non-employees from the risk of COVID-19 infection.

It is a criminal offence for an employer to fail to comply with their legal duties under the Health and Safety at Work Act.

Businesses must therefore make sure that they understand the requirements they must comply with in order to minimise the risk from COVID-19, as well as the potential penalties for any breach of health and safety regulations and what to do if they are accused of a breach.

What are COVID-19 health and safety requirements are there for businesses?

The Health and Safety Executive (HSE) is the government agency responsible for health and safety regulations and prosecutions in England, Wales and Scotland (with a separate agency for Northern Ireland).

HSE has said: “Employers must continue to comply with health and safety at work laws. This includes updating their risk assessment to protect workers and others from the risk of COVID-19 transmission in the workplace.”

HSE has set out guidelines for the measures businesses should take to limit the risk of COVID-19 transmission, including:

  • Updating your risk assessment to include managing the COVID-19 risks
  • Keeping your workplace clean
  • Providing facilities and guidance on regular handwashing
  • Ensuring good ventilation
  • Consulting with employees and providing appropriate information on mitigating COVID-19 risks
  • Providing proper equipment and support to employees working from home
  • Properly considering the needs of employees that are considered at higher risk from COVID-19

You can read more about this on the HSE website.

How are COVID-19 health and safety rules enforced?

HSE is carrying out spot inspections to ensure businesses have in place appropriate measures to limit the risk from COVID-19. They can also carry out an inspection if a concern has been raised by an employee or member of the public, with over 5000 reports about coronavirus risks received by HSE in the first year of the pandemic alone.

If a HSE inspection finds that a business does appear to have breached health and safety regulations with regard to COVID-19 (or any other matter), the agency has the power to bring a prosecution against the business. However, in the first instance, it is more likely that one or more prohibition notices and/or improvement notices will be issued.

What are health and safety prohibition notices and improvement notices?

A prohibition notice issued by a HSE inspector will state that a business must no longer carry out an activity or activities specified in the notice as the inspector believes those activities represent a risk of serious personal injury.

An improvement notice will set out actions that the inspector believes the business must take to mitigate the risk of serious personal injury that currently exists within the workplace. It will specify a period for compliance, but the end of which the matter must have been addressed to the inspector’s satisfaction.

Failure to comply with the terms of a HSE prohibition notice or improvement notice could result in further action, including prosecution.

You can read more about improvement notices and prohibition notices here.

What penalties are there for breaches of COVID-19 health and safety rules?

An employer can be held personally responsible for any health and safety breaches in their business. If they are found prosecuted and found guilty, the employer could face a community service order, imprisonment and/or a fine.

If the offence is prosecuted in a magistrates’ court, the maximum sentence is six months imprisonment, an unlimited fine or both

If the offence is prosecuted in Crown court, the maximum penalty is two years imprisonment, an unlimited fine or both.

Prosecution for a health and safety breach is also likely to have a significant negative impact on your business’s reputation and commercial relationships.

What to do if you are inspected or prosecuted for a COVID-19 health and safety breach

If your business is alleged to have breached health and safety regulations in relation to COVID-19 or any other matter, it is essential to seek expert advice at the earliest opportunity. This can help to avoid any mistakes which could increase your chances of prosecution and/or undermine your defence.

At Renshaw Derrick, we have a wealth of experience defending businesses in relation to all manner of regulatory offences, including health and safety breaches. Our expert regulatory offences solicitors in Bournemouth can provide clear, pragmatic advice on a COVID-19 health and safety breach or any other type of regulatory breach in relation to your business.

Drawing on our many years of experience, we can give you the best chance of avoiding prosecution, including through negotiation with HSE to take remedial action and agree to a lower penalty that minimises any impact on your business. Where a prosecution cannot be avoided, we can provide a robust defence, giving you the best chance of securing a favourable outcome for your case

For immediate advice on a COVID-19 health and safety offence or early advice on a potential breach, you can call us on 01202 552777, email, or fill in our online enquiry form.