The age of COVID-19 has created all kinds of uncertainties and confusion. In such a time, the rules relating to employers’ responsibilities for notifying the HSE of workplace accidents under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) have never been more pertinent – and yet never so often misunderstood.
RIDDOR puts duties on employers, the self-employed and people in control of work premises (the ‘Responsible Person’) to report certain serious workplace accidents, occupational diseases and specified dangerous occurrences (near misses). If someone has died or has been injured, due to a work-related accident, this may have to be reported: there were 65,427 injuries to employees reported under RIDDOR, according to the HSE’s 2019-20 statistics for Great Britain (www.is.gd/kucela). Not all accidents need to be reported, however. Other than for certain gas incidents (www.is.gd/etihav), a RIDDOR report is required only when:
● The accident is work-related
● It results in an injury of a type which is reportable.
Fairly clear-cut, it might be assumed. Yet, as Douglas Cameron points out, the arrival of COVID-19 has caused growing concerns amongst a number of employers. “Far too many organisations are reporting incidences of the virus to the HSE where these are clearly non-reportable,” says Cameron, head of health & safety services at Glasgow-based Law at Work. “If an employee is at work and is found to have contracted COVID-19, it’s not possible to say whether it happened on the premises, as the virus is invisible. Yet many such incidences are being reported.”
UPWARD TRAJECTORY
This trend is reflected in the number of occupational COVID-19 notifications that have been made to enforcing authorities. The figure has been generally increasing week-on-week since early September, though at time of writing in early November numbers were below the peak seen in April. There were 1,183 reports at the peak, compared with 530 reports made in the latest figures released. States the HSE: “Over the period 10 April-17 October, 11,278 occupational disease notifications of COVID-19 in workers were reported to enforcing authorities [HSE and local authorities], including 162 death notifications.” Around 80% of all worker-reported cases (fatal and non-fatal) since 10 April were in HSE-enforced workplaces.
Adds Cameron: “Certainly, employers must make a report when, for example, a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work. This is reported as a ‘case of disease’ – namely, a healthcare professional who is diagnosed with COVID-19 after treating patients who have the virus. By the same measure, where an unintended incident at work has led to someone’s possible or actual exposure to Coronavirus, such as a lab worker accidentally smashing a glass vial containing Coronavirus leading to people being exposed, this should be reported as a ‘dangerous occurrence’. A factory recently announced that 80% of its workforce had contracted COVID-19, which very much sounds as if the outbreak occurred in that environment – again, this is reportable.”
REASONABLE JUDGEMENT
For a COVID-19 incident to be reportable as a dangerous occurrence does not demand any complex analysis, measurement or test, advises the HSE, “but rather for a reasonable judgement to be made as to whether the circumstances give rise to a real risk or have the potential to cause significant harm”. If there is reasonable evidence, for instance, that a work-related exposure caused a worker’s death, the responsible person “should notify the enforcing authority by the quickest practicable means, without delay, and send a report within 10 days”. The report should specify death due to exposure to a biological agent using the ‘case of disease’ report form (available via www.is.gd/abagus).
Over and above COVID-19, all deaths to workers and non-workers need to be reported if they arise from a work-related accident, including an act of physical violence to a worker, with the exception of suicides. “The fact that there is an accident at work premises does not, in itself, mean that the accident is work-related – the work activity itself must contribute to the accident,” states the HSE, else it is non-reportable.
MEETING THE THRESHOLD
Incidents must be work-related to meet the reportable threshold, reaffirms Louise Hosking, director of occupational safety & health consultants Hosking Associates. She continues: “Therefore, if someone is unwell or the accident – following investigation – is not work-related, this is not reportable.”Examples where an incident is reportable would be someone having a heart attack on site and having to go to hospital, or being off work. She adds: “There are also certain, listed, reportable occupational diseases – for example, hand arm vibration syndrome” also known as HAVS; see also p15. “These are reportable, if they have been diagnosed by a doctor. Even then, an investigation would accompany this to determine if it is out of, or in connection with, work, as it could be due to activities outside the workplace.”
What else is not reportable? Hosking replies: “There has been a long-running debate about road traffic accidents involving people at work. These are not currently RIDDOR reportable, but employers still have a duty of care to their teams, and most organisations will internally report these cases. Work-related stress is not reportable, because it is not a defined injury. We know, even before the pandemic, that lost time due to stress has been increasing. Statistics in relation to this are currently collated by a labour force survey [see also www.is.gd/aderar]. Similarly, there are other latent work-related diseases which may not be RIDDOR reportable, so we don’t have accurate data on these, which means we don’t know the true impact on the nation’s ill health due to their work.”
LOGGING INCIDENTS & ACCIDENTS
While not every incident is reportable, it’s important to know the difference between what does and doesn’t need reporting, confirms Sarah Milroy, health and safety quality manager at safety support services firm Citation. “That said, we’d always recommend logging incidents and accidents that aren’t reportable under RIDDOR as well, preferably in a company accident book.”
Why? She offers three main reasons. “First, it helps prevent similar instances from happening again by putting the spotlight on your internal processes and risk assessment compliance procedures. It also provides the opportunity to implement changes or improvements that could help to prevent a more serious accident or incident. This improves your organisation’s overall risk management.
“Secondly, it gives you an audit trail to fall back on of what actually occurred, were an injured person later to lodge a claim against you. And, thirdly, you will have already done the groundwork for any further investigation by an enforcing authority, if that transpired.”
Citation offers a step-by-step incident facility on its online platform, where clients can log everything from photos and witness statements, to relevant risk assessments and training certificates. And, if an incident is RIDDOR-reportable, adds Milroy, users are taken directly to the HSE’s reporting system. “Should anyone be unaware or unsure of the reporting criteria relating to RIDDOR, they can always approach organisations such as ours for clarity, because ignorance can never be a plausible defence.”