As restaurants and pubs plan to reopen from 4th July, many are asking themselves: What if an employee or customer tests positive for coronavirus? Could we be held liable if they contract the virus in our premises, or cause it to spread to other customers?

Under the Health and Safety at Work Act 1974, employers have a legal duty to ensure the health, safety and welfare of employees, and to ensure that customers are not exposed to risks. One of the main requirements on employers is to carry out a risk assessment to identify risks and to take reasonably practicable measures to control these. According to the Government’s new Covid-19 Secure Guidance for food businesses, sensible measures might involve limiting the number of customers, providing guidance to customers on expected behaviour on arrival, reconfiguring furniture to maintain social distancing between customers, managing outside queues, introducing one way systems, using protective screens and changing shift patterns so that staff work in set teams. It is vital that these procedures are properly communicated to staff to ensure a safe workplace. There is also an expectation on all employers with 50 or more staff to publish their risk assessment on their website or staff intranet.

If an employee or customer catches coronavirus (or even worse, dies) after being in your restaurant, then you will need to demonstrate that you took reasonable steps to mitigate the relevant risks. If you have departed from the Government’s Covid-19 Secure Guidance then you must document and be able to justify this. Otherwise, if you have breached your duty to ensure health and safety, this could result in criminal proceedings being brought. Whilst in a health and safety setting these would usually be brought against a company, individuals can also be prosecuted. There is also the risk of a civil claim for compensation for injuries and losses caused. Therefore, it is crucial for risk assessments to be completed and proper procedures and policies put in place well ahead of reopening (even if this means you aren’t ready on 4th July).

Cases of, and deaths from, coronavirus may also be notifiable to the Health and Safety Executive (HSE) under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). These Regulations require a report to be made wherever an employee has been diagnosed as having Covid-19 (or dies) as a result of work-related exposure to coronavirus. New guidance published by the Chief Coroner also confirms that deaths from Covid-19 must be subject to a coronial investigation where there is reason to suspect that culpable human error contributed to the death. This may arise if food businesses fail to follow the Government’s secure guidance, either by operating unsafe working environments, a lack of PPE or social distancing failures.