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Contracting Covid-19 at work – who needs to know? Chief Coroner’s Guidance 37 & RIDDOR

The vast majority of deaths from Covid-19 will not be referred to the Coroner and even fewer will result in an inquest into the death. However, when an employee dies from Covid-19 it may have to be reported to both the Health and Safety Executive (‘HSE’) and the Coroner.

On 28th April 2020 the Chief Coroner issued the latest in a flurry of guidance that he has issued since the Covid-19 pandemic commenced. This guidance (No.37)[1], to assist Coroners, addresses considerations that might arise in relation to Covid-19, where it is possible that the deceased has been exposed to the virus in the workplace. The Health and Safety Executive (‘HSE’) has issued guidance to assist employers understand when they are obliged to report deaths from Covid-19.[2]

It has been made clear in earlier guidance from the Chief Coroner that the vast majority of deaths from Covid-19 will not be referred to the Coroner. They will be natural cause deaths and despite the fact that death due to Covid-19 must be notified to Public Health England that does not mean a referral to the Coroner is required.[3]

Notification to the HSE – RIDDOR

A death from Covid-19 may be notifiable to the (‘HSE’) under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (‘RIDDOR’),  which provides that where a person dies as a result of occupational exposure to a biological agent, the responsible person must follow the reporting procedure.[4] The HSE Guidance provides ‘If a worker dies as a result of exposure to coronavirus as a result of exposure to coronavirus from their work and this is confirmed as the likely cause of death by a registered medical practitioner, then you must report this as a death due to exposure to a biological agent using the ‘case of disease’ report form’. Workplace fatalities must be reported to the HSE by the ‘quickest practicable means without delay’ and within 10 days of the death.

Further assistance as to the need to report is provided in respect of anyone who has contracted COVID-19 as a result of exposure at work, not just those who have died. The guidance from the HSE states ‘If there is reasonable evidence that someone diagnosed with COVID-19 was likely exposed because of their work you must report this as an exposure to a biological agent using the case of disease report.’ There are therefore two requirements before an employee suffering from COVID-19 needs to be reported to the HSE. Firstly, they need not be reported unless they have been diagnosed. Therefore, simply suffering symptoms without a formal diagnosis does not require reporting. Secondly, there has to be reasonable evidence that they were likely exposed because of their work. Given the prevalence of the virus there may be few cases outside of a healthcare setting where there is likely to be reasonable evidence that the employee was exposed because of their work.

Failure to comply with RIDDOR is a criminal offence.

Referral to the Coroner

There must also be a referral to the Coroner if the medical practitioner completing the Medical Certificate of Cause of Death suspects that the persons death was due to ‘an injury or disease attributable to any employment held during the person’s lifetime.’[1] Where such a referral is made it is difficult to see a scenario where the RIDDOR reporting requirement is not also made out and if the HSE has not already been notified, the employer should notify them without delay.

A referral to the Coroner does not necessarily mean that there will be an inquest into the death. What happens following a referral is that the Coroner must decide whether they have reason to suspect that the deceased died a violent or unnatural death; that the cause of death is unknown; or that the deceased died while in state detention. If the answer to any one of those considerations is yes, the Coroner must conduct an investigation.[2]

If not, then the Coroner would notify the Registrar that they are not under a duty to investigate the death. Guidance 34 reminds Coroners that the words reason to suspect denote a low threshold test and that a death may be unnatural where it has resulted from the effects of a naturally occurring condition or disease but where some human error contributed to the death.

Guidance 34 sets out those circumstances in which issues arising in the workplace leading to a death from Covid-19 might require an inquest, which include ‘if there were reason to suspect that some human failure contributed to the person being infected with the virus’ or ‘whether any failures of precautions in a particular workplace caused the deceased to contract the virus and so contributed to death.’[1] The guidance is also expressly clear that an inquest is not the appropriate forum to consider general policy issues, therefore whilst it might consider precautions in an individual workplace it would not make decisions regarding the policy arrangements for provision of personal protective equipment (‘PPE’).

Therefore, the vast majority of deaths from Covid-19 will go uninvestigated. However, where the disease was contracted during the course of someone’s employment both the HSE and the Coroner will be notified so as to be able to conduct their own investigations and ascertain whether any further steps need to be taken to consider what was done by those owing a duty to the deceased.

Kirsten Mercer

Park Square Barristers

28th April 2020

To read the full Chief Coroner’s Guidance No. 37   Click here

[1] Chief-Coroners-Guidance-No-37

[2] https://www.hse.gov.uk/news/riddor-reporting-coronavirus.htm

[3] Section 30(1) Coronavirus Act 2020 “For the purposes of section 7(2)(c) of the Coroners and Justice Act 2009…COVID-19 is not a notifiable death.”

[4] Regulation 6(2) RIDDOR

[5] Regulation 3(1)(a) Notification of Deaths Regulations 2019

[6] S.1(2) Coroners and Justice Act 2009

[7] This article does not deal with any issues relating to clinical care, which may require an inquest or deaths in state detention which would require an inquest.

Kirsten is a highly experienced member of the  Regulatory & Public Law Team  and represents interested persons at inquests in a wide range of matters including deaths arising out of work place accidents and deaths in custody. She is regularly instructed in Article 2 inquests on behalf of the Ministry of Justice, the National Probation Service and Healthcare providers in the most serious of cases. Kirsten is passionate about the environment and is following keenly any suggestion that air pollution and other environmental issues may have an impact on deaths from Covid-19.Kirsten has been Government Legal Department panel counsel since 2012 and was appointed to the B panel of the Specialist Regulatory Advocates in 2019.