Risk assessment at work during the coronavirus pandemic and while ‘living with’ COVID-19: What can England learn from Sweden?

by Peter Andersson, University of Gothenburg and Tonia Novitz, University of Bristol Law School

The crisis which arose in March 2020 regarding the coronavirus pandemic immediately centred on risk. Predictions had to be made swiftly regarding how the virus would spread, whom it might affect and what measures could be taken to prevent exposure, including in the workplace. As part of a broader Swedish Research Council project (2018 – 2022), we have conducted a comparative study of English and Swedish responses to the pandemic, focussing on their treatment of risk.

It was apparent that the two countries took very different approaches to COVID-19. For example, ‘lockdowns’ like those implemented in the UK were not imposed in Sweden, although Swedes were requested to work at home as much as possible.

We recognise that risk assessment plays two key roles. One is pre-emptive, namely to prevent harms rather than only compensating for such harms after the fact. The second role is defensive, protecting an employer from liability by demonstrating that due care was taken. We have found that the Swedish approach is more pre-emptive, while in the UK risk assessment is used more defensively in criminal and civil litigation.

The pre-emptive role of risk assessment, or the scope of any ability to prevent harms, is inherently limited by who is identified as the legitimate subject of risk assessment: ‘employees’, ‘workers’ or ‘independent contractors’? This has been the subject of a judicial review action brought by the Independent Workers’ Union of Great Britain (IWGB) against the Secretary of State for Law and Pensions. A significant outcome of the judgment delivered by Chamberlain J, which sought to implement the European Union (EU) Framework Directive on Health and Safety and the Personal Protection Equipment (PPE) Directive, was the extension of entitlement to PPE to so-called ‘limb(b) workers’ (as designated under UK statute) as opposed to merely ‘employees’. Moreover, the judgment recognised the right of ‘workers’ to refuse to work where there is serious or imminent danger under section 44 of the Employment Rights Act (ERA) 1996 without detriment. However, only those workers deemed ‘employees’ could claim protection from dismissal under section 100 of the ERA.

By way of contrast, Swedish work environment law has long recognised that a broader range of persons qualify for health and safety protections as ‘employees’ or ‘equivalent to employees’. A specific project was created extending protections to self-employed platform workers. After legal challenges in which employers successfully argued that they did not have ‘employer responsibility’, the Swedish Work Environment Authority abandoned this scheme, but a proposed EU Platform Work Directive (if adopted) may enable its reinstatement. In this sense, EU law has a significant effect on the coverage of risk assessment, which raises important issues regarding protection of those at work in the UK post-Brexit.

There is also a vital difference between England and Sweden in terms of the statutory funding and powers of relevant supervisory bodies. While both countries have comparable statutory agencies engaged in promoting assessment of risk by employers and its amelioration, the UK Health and Safety Executive (HSE) and the Swedish Work Environment Authority (SWEA), there were notable disparities between their capacities in the context of the pandemic. Both actively advocated that employers undertake additional risk assessment during the pandemic. However, funding of the HSE had declined dramatically in the years preceding the pandemic (from £331 million in 2009/10 to £226 million in 2019/20), such that a temporary injection of £14 million in May 2020 could not readily revive its supervisory functions, nor did the HSE intervene with detailed advice as regards what risk assessment in English workplaces should entail. Instead, it appeared that the HSE had ‘gone missing’. It was the English Government that issued sometimes questionable guidance on what was ‘COVID-secure’, with prominent advice from what was ‘Public Health England’ (since October 2021 replaced by two bodies, the UK Health Security Agency (UKHSA) and the Office for Health Improvement and Disparities, which places health-related issues more directly under UK Government control). Risks identified in such guidance tended to be solely physical and not psycho-social, despite forms of stress created by combined teleworking and home schooling, especially for women. It remains probable that in England, few civil and criminal cases will be brought, given that employers did follow the bare bones of this guidance. In this sense, risk assessment in England has served its defensive function for employers, but the rates of deaths and long-COVID now being reported suggest that the workforce did not go unharmed.

Finally, there is a significant difference between England and Sweden regarding the extent of collective worker representation promoted in OSH. In publications issued by the HSE during the pandemic, recommending that employers ‘talk to’ their workers, statutory requirements to inform and consult workers were glossed over. By way of contrast, the SWEA received more complaints and carried out more inspections, prompted by the active statutory role which trade union representatives play. There are wider ranging entitlements in Sweden to call for a stoppage of work until OSH issues are addressed and these were deployed in the context of the COVID-19 pandemic on 328 occasions.

In February 2022, most COVID-19-related public health restrictions ended in England and Sweden, despite criticism from scientists and medical professionals, giving further cause to reflect on different responses to management of risk assessment and their effects. While coronavirus variants spread globally and other issues concerning viral contagion remain, we consider there remain compelling arguments for legal, policy and institutional reform that deserve continued attention.

See further:

The Commission Roadmap on Covid-19: is the EU Finding the Route or Continuing to Lose the Way?

By Prof Keith Syrett, Professor of Health Law and Policy (University of Bristol Law School)

Credit: European Union, Coronavirus Global Response, 2020

The European Union has been widely criticised for its response to the outbreak of pandemic coronavirus (COVID-19) in early 2020. Still distracted by Brexit and, more recently by the Turkish migrant crisis, EU leaders were caught off guard by the rapid spread of the virus, initially into Italy. Member states took actions into their own hands, imposing border controls, banning exports of protective equipment and, later, banning mass gatherings, closing schools, and instituting lockdowns, while the EU appeared to be a largely impotent bystander.

Perhaps the EU’s muted initial response was unsurprising, given that previous public health threats of a similar type, such as SARS, MERS and Ebola, had had little impact within the Union. However, more than a decade previously, concerns had been raised about lack of preparedness for a pandemic outbreak in Europe.[1] Notwithstanding the EU’s subsequent establishment of a firm legal basis for a response to pandemics, it now seems that the lessons presented previously had not fully been learned. (more…)

Covid-19 Lockdown: A Response to Professor King

By Robert Craig, PhD Candidate and Tutor in Law (University of Bristol Law School)

This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

In two recent posts for the UK Constitutional Law Association (here and here), Professor Jeff King has set out a focused analysis of key elements of the recent Regulations (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8)) that purport to place severe restrictions on the ability of ordinary citizens to leave the place where they are living. (more…)

Beyond liberty: social values and public health ethics in responses to COVID-19

By Prof John Coggon, Professor of Law (University of Bristol Law School)

Legal and policy responses to COVID-19 rest on and express the balance of different basic values and principles. Earlier and current regulatory approaches bring into sharp relief how liberty must be understood and weighed against other values. This is for the sake of liberty itself, but crucially too for other compelling aspects of social justice.

Emergency powers and pandemic ethics

COVID-19 is a global problem, albeit one that governments across the world have been approaching differently. Over the past weeks we have seen fast changes in policies as different countries have sought to anticipate and respond to the extraordinary scale of the challenges that we face and which lie ahead. (more…)

Looking at Investment Arbitration through Roland Barthes’ Eyes (IEL Collective Symposium II)

By Dr. Paolo Vargiu, Lecturer in Law (University of Leicester)

Roland Barthes was never particularly interested in the law. Were he alive today, however, it is hard to imagine that he would be a strong supporter of a regime like investment arbitration – a system which, in spite of its best original intentions, has long been exposed by its critics for the lack of balance in rights and obligations and the abuse of the mechanism to increase the already disproportionate power of multinational corporations vis-à-vis the state where they invest. However, his literary production can nonetheless serve as a model for inquiring on aspects of the investment arbitral regime that remain somehow at the margins of the scholarly critique.

In his essay “Writers, Intellectuals, Teachers” (1971), Barthes theorised an imaginary contract between teachers and students, with specific tasks and expectations brought into the contractual relationship by both parties. Barthes’ teachers are neither mere providers of information nor simply the means used by the school to educate students: instead, they are at once erudite, educators, mentors, instructors and tutors. The term magister may be more appropriate to define Barthes’ teachers for they carry the burden to not only instruct on specific tasks, but also to represent schools of thought, and to act as guides, almost gurus, towards enlightenment, knowledge, and skill. They are vested, in other words, with the duty of developing the community they guide; and, rather than self-conferred, it is a duty given to them by such community. (more…)

Nanny states and grown-up debates on alcohol policy

By Prof John Coggon, Professor of Law (University of Bristol Law School)

Photo: Flickr

Debates on alcohol policy are necessarily complex and controversial, and a complete consensus on how we should regulate this area will not be achieved. Like other lawful but regulated products, alcohol presents benefits and harms that may be understood from ranging perspectives. These include views based in cultural, economic, ethical, historical, legal, medical, population-based, religious, and social understandings. Of necessity, outlooks on alcohol policy and the role of regulation therefore vary both within and across such differing sources of critique. The values—positive and negative—of alcohol at individual, familial, community, commercial, and population levels thus call for careful, reasoned, and respectful public debates.

Even within the context of public health analysis, we cannot just look to scientific studies to inform and determine policy: we are required to consider forms of ‘evidence’ from different disciplines and sectors. This is well explained in a recent publication by the Health Foundation, with papers applied to child obesity but with lessons that are generalisable across health policy. However, for many working in public health, or members of wider communities who have interests in what makes good health policy, challenges emerge in relation to the conduct of public debates: often care, reason, and respect are replaced by simplistic slurs and assertions. And in this context, accusations of nanny statism are a key and persistent example. (more…)

Strengthening the Capacity for Ethical Public Health

By Prof John Coggon, Professor of Law and Co-Director of the Centre for Health, Law, and Society (University of Bristol Law School).  Honorary Member of the Faculty of Public Health.*

© Rookuzz..

Public health is proudly an evidence-based field. But evidence without values cannot tell us what we should do.

We need public health ethics if we are to understand and explain, by reference to the classic definition of public health advanced by Winslow, what we, as a society, ought to do to assure the conditions in which people can enjoy good health and equitable prospects for health. Using the ‘organised efforts of society’ to protect and promote health and well-being is an ethical goal—indeed, as many of us would argue, it is an ethical imperative. And to be achieved, it requires law and policy. To evaluate when threats to health warrant a public health response, scientific analyses must be complemented by matters such as the balancing of values, an assessment of the relative merits of different possible interventions, an appreciation of the likely risks and impacts of intervening, and a sensitivity to political and cultural contexts and realities. (more…)