As the issue of the health and safety of healthcare workers and the lack of availability of personal protective equipment (PPE) becomes more and more prevalent, it is clear that employees and employers in the healthcare sector are facing serious challenges in light of the unprecedent COVID-19 situation.
The nature of their job puts healthcare workers at an increased risk of contracting COVID-19. PPE like masks, gloves and gowns helps keep them safe when treating patients with infectious diseases such as COVID-19.
Public Health England currently recommends PPE for healthcare workers including filtering face respirators, fluid resistant surgical masks, eye and face protection (such as surgical mask, full face shield, safety goggles), and disposable aprons, gowns and gloves in order to protect them from infection.
Government guidance assumes PPE availability, but it is becoming increasingly clear that PPE is often unavailable or unsuitable for healthcare workers in the current pandemic. Furthermore, official guidance stating that no PPE is needed in certain situations has created confusion for healthcare workers who are concerned that lack of PPE is putting themselves and others at risk.
The Health and Safety at Work Act 1974 lays down wide-ranging duties on employers to protect the health, safety and welfare at work of all their employees so far as is reasonably practicable.
Under common law, employers have a duty to provide a reasonably safe working environment, with safe equipment, safe systems of work, a safe place of work and competent staff. Employers must also carry out risk assessments and take steps to eliminate or control any risks to staff.
The provision of appropriate safety equipment is a key part of this duty. The extent of this duty depends on the risk of injury, the gravity of any injury which may result, the difficulty of providing equipment and the availability of the equipment. The law requires employers to ensure that suitable PPE is provided free of charge ‘wherever there are risks to health and safety that cannot be controlled in other ways’. The PPE must be ‘suitable’ for the risk in question. Employers also have a duty of provide information, training and instruction on the use of this equipment.
Employees are protected by law if they reasonably believe they are in ‘serious or imminent danger’ at work and they take appropriate steps to protect themselves or others from this danger. If an employee is dismissed or resigns in connection with a health and safety concern, and it is deemed an automatically unfair dismissal, they will be able to claim unlimited damages in an Employment Tribunal irrespective of their length of service.
Employers in the healthcare sector would be well-advised, insofar as is reasonably practicable, to take measures including:
- Adhere to guidance from the government and public health bodies;
- Act proactively to protect the safety of staff by providing suitable and adequate PPE;
- Undertake risk assessments and review control measure on a regular basis;
- Ensure staff are fully trained in the correct use of PPE including what they should be wearing, which items are subject to single use or reusable and appropriate disposal processes;
- Ensure staff practice appropriate hand hygiene;
- Keep clear records of PPE available and to whom it is provided;
- Investigate, respond to and report all complaints from staff about lack of PPE.
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