Major crises often spawn a range of opportunists – acting with various intentions – and the Covid-19 pandemic is no different in this respect. Among the latest trends reported by one UK broadsheet is the registration of dozens of company names positioning themselves to take advantage of compensation culture. Among them are the likes of Coronavirus Compensation Ltd and Corona Virus Claims Ltd.
Quite how Covid claims could manifest in the employment arena is not clear, but one business travel manager recently shared their concerns about the role of corporate travel with BTN Europe. Having attended a webinar hosted by their insurance broker to advise companies how to protect themselves from such claims, they said “it opened my eyes up to what could be coming our way.”
Indeed, insurance brokers have been preparing advice to help clients mitigate exposure to future claims in the workplace and, by extension, whilst travelling on business.
“We expect there will be claims from people who have contracted Covid through the course of their work and that would include travelling for work – abroad or otherwise,” says Clare Hirst, associate director, risk management at global advisory, broking and solutions company Willis Towers Watson.
“They [the claimant] would have to have suffered injury or loss as a consequence of it and be able to prove negligence on the part of their employer,” says Hirst, who adds that such claims would be treated in the civil court in the same way other workplace issues would be – a manual handling injury, for example.
Joseph Lappin, partner and head of employment at UK law firm Stewarts, plays down the threat of such claims, saying “we are unlikely to see an avalanche of negligence claims being pursued by employees who regularly undertake business travel.”
Nevertheless, the aforementioned travel manager is not taking it lightly. The employee, who wished to remain anonymous, says their company, an engineering firm, has continued with some essential business travel throughout the pandemic and has had at least two cases of employees contracting Covid whilst on such trips, but not to a debilitating degree.
“We believe it’s possible there could be claims in the future. People are going away on business, they’ve caught Covid... it’s going to happen one day when you have a disgruntled employee, for whatever reason, seeking compensation. No matter how much protection we put in place, that kind of culture is going to be there.”
Both Hirst and Lappin reinforce the basic requirement that employers must fulfil their duty of care to provide a safe place to work – which extends to business travel – and be rigorous in their approach.
Employers should carry out risk assessments for every trip and document the steps they’ve taken to provide safe travel for staff, and employees should be armed with adequate information about their trip.
Organisations should also consider whether a trip is essential or if it could be done virtually, and nobody should be put under pressure to travel. And if someone does have to travel, what measures can be put in place to keep them safe and how, as far as possible, they can comply with social distancing measures.
Employers must also consider PPE provision, sourcing suitable accommodation that complies with health and safety standards, and the measures the site being visited has taken to reduce congestion or comply with social distancing, advises Hirst, who adds that all precautions should be clearly documented.
“In terms of people travelling on business, they will need to carry out pretty stringent risk assessments for the individual, the task they’re facing and their destination,” says Hirst.
However, there is a limit to the steps an employer can be expected to take to provide safe business travel for their staff, explains Lappin, who says that if all the appropriate measures are taken, employers are unlikely to have acted negligently.
To make a successful claim, an employee would need to demonstrate a breach of their employer’s duty of care – for example, failure to provide hand sanitiser, PPE or a risk assessment, says Hirst – and they would also need to prove, ‘on the balance of probability’, that they contracted Covid whilst on the business trip to which the claim pertains.
“It will always be difficult for the employee to demonstrate that the work travel itself is responsible for the infection,” says Lappin. “How can an employee say with any certainty that they did not become infected in the days before travelling or on the way to the airport or during down time on the trip itself? Pinpointing when and where an infection occurred is almost impossible.”
To tackle their concerns, the engineering company’s travel manager has worked with their organisation’s HR, legal and health and safety teams and already set about tightening its duty of care procedures.
It has conducted thorough risk assessments for several years but it is now additionally asking for similar quality information from their customers about the sites their staff are visiting.
“As much as a customer vets us, we need to vet our customers too,” they explain. “We can send our travellers fully prepared with PPE and we know what our hotels’ health and safety protocols are, but we need that security around the customer locations too.”
The company, like many others in the current environment, is also implementing a pre-trip approvals process.
“If you’d asked me six months ago I’d have said we don’t need it, even in the depths of the pandemic, but with the casket of information we’ve opened up… It’s not something we’ve ever done and it’s not about cost [savings], this is about the safety of our travellers and visibility of everything going on.”
They continue: “It’s so a manager can say ‘oh, you’re going to see such and such a customer. Well, I don’t know if they’ve got the right protective measures for you, and I need to safeguard you because you’re my responsibility’.”
When the proposed traffic light system is implemented for outbound travel from England in May, the organisation will use it as part of it risk assessment. Due to the nature of its business, some of its business travel is deemed essential and can be conducted even under current restrictions.
“If a country is on the red list then the risk is too high to send travellers there, never mind the barriers to doing so,” says the travel manager. “For green countries we’ll be all systems go but we’ll still complete risk assessments – there will still be some elements of risk to visiting those countries.”
The company is also exploring whether it will need additional insurance or to “put something into employment contracts”.
Asking employees to sign waivers before travelling has been mentioned in other quarters, but the idea is quickly scotched by Willis Towers Watson’s Hirst.
“That wouldn’t hold any weight in English law. You can’t exclude liability for personal injury and loss where there’s been negligence,” she explains.
Stephen Barth of hospitalitylawyer.com additionally expressed concern about the message that might send to employees.
“Waivers don’t relieve the business from meeting their duty of care obligations. An employee cannot waive their right to seek compensation from their company,” he said at the Global Travel Risk Summit Europe last week.
“In my experience, if an organisation asks an employee to sign a waiver or to accept the risk, that to me alienates the employee because that company’s really saying 'we don’t think we can keep you safe'.”
Ultimately, mitigating the risk of potential claims is about having duty of care strategies in place, following policies and procedures, following government advice, carrying out risk assessments and staying informed, says Hirst.
The final word goes to Lappin: “It is only ever worth suing an employer if you have suffered loss as a result of your employer’s negligence. Unless someone becomes extremely unwell it is unlikely they will suffer substantial financial losses. Given the hurdles employees will need to clear in order to bring a successful negligence claim, it will not, in most cases, be worth suing an employer if the only loss is small – for example, a reduction in pay to statutory sick pay for a short period.”
He concludes: “Nevertheless, there will be some cases which tick all of the boxes. If an employee can point to a clear failure by the employer to provide safe business travel, they voiced concerns about the need for the travel but came under pressure from the employer to board the plane, and they can identify the likely source of infection and have suffered a long-term or chronic illness as a result then it will be worth bringing a claim. However, these cases are likely to be few and far between.”