Friday, March 18, 2022
Accessible at: https://www.bristol.ac.uk/media-library/sites/law/research/COVID-19%20at%20Work%20Exposing%20how%20risk%20is%20assessed%20and%20its%20consequences%20in%20England%20and%20Sweden.pdf The crisis which arose suddenly at the beginning of 2020 relating to coronavirus was immediately centred on risk. Predictions had to be made swiftly regarding how it would spread, who it might affect and what measures could be taken to prevent exposure in everyday social interaction, including in the workplace. This was in no way a straightforward assessment, because initially so much was unknown. Those gaps in our knowledge have since, partially, been ameliorated. It is evident that not all those exposed to COVID-19 become ill, and many who contract the virus remain asymptomatic, so that the odds on becoming seriously ill may seem small. But those odds are also stacked against certain segments of the population. The likelihood of mortality and morbidity are associated with age and ethnicity as well as pre-existing medical conditions (such as diabetes), but also with poverty which correlates to the extent of exposure in certain occupations. Some risks arise which remain less predictable, as previously healthy people with no signs of particular vulnerability can experience serious long term illness as well and in rare cases will even die. Perceptions of risk in different countries have led to particular measures taken, ranging from handwashing to social distancing, use of personal protective equipment (PPE) such as face coverings, and even ‘lockdowns’ which have taken various forms. Use of testing and vaccines also became part of the remedial landscape, with their availability and administration being controlled by different states around the globe in different ways, raising also questions of relative ethical responsibilities of governments and individuals. This complex assessment of risk has then to be translated into the workplace, raising issues of occupational health in terms of exposure to serious illness, ongoing ill health or even potentially death. Many people at work have also experienced stress linked to overwork caused by the effects of the virus on their jobs, namely the increased scale of demands or the new modes of performance of their tasks, for example telework from home (especially in the context of homeschooling when schools are closed). For others, being in a work environment where they are more exposed to the virus and its effects (even subject to guidance as to the best ways to promote safety) does damage to their mental health. How these risks to physical and mental health are to be factored into any assessment for well-being at work is a highly topical issue and the focus of our analysis here. Further, we are aware that what is meant by being at work is itself controversial, given a growing tendency for putative employers to ‘outsource’ more risky forms of work, contracting out work when they could face liability for what would otherwise be regarded as occupational risks. It is in this context that we offer a comparative study of England and Sweden. Current statistics indicate that the UK had the 14th highest death rate in a league table of the European Economic Area (EEA) and the UK, while Sweden came 19th. Allegations have been made by labour lawyers that the UK Government’s handling of the pandemic has been highly problematic, highlighting the failings of the UK’s labour laws and social security systems. In Sweden, the excess mortality rate during the pandemic was relatively low in comparison with Europe more generally. Swedes were recommended to work from home as much as possible, although ‘lockdowns’ like those implemented in the UK were not imposed. This means that questions concerning risk assessment and risk management at work have also been of paramount importance for Swedish individuals and society. On 9 February 2022, most COVID-19-related public health restrictions ended in Sweden, as well as free public testing. In England most restrictions were abolished on February 24 and free testing is set to end on 1 April 2022, despite criticisms from scientists and medical professionals. Now is a good time to look back at the different the legal responses to the crisis and also to consider the legal duties of employers now that such public health measures have been lifted. The pandemic is in a new phase, arguably making everyday occupational health and safety issues such as risk assessment more important than ever. In this article, we consider the private and public labour laws and regulatory systems which evaluate and regulate risk at work in our respective countries. The scope (and limitations) of their application and operation have in various respects been exposed in the COVID-19 crisis, such that there may be scope for learning from each others’ successes and failings. We should stress at the outset the limitations of this comparative analysis. We are not considering the availability of sick pay and various benefits and allowances made available over the period of the pandemic, and their relative adequacy or otherwise, which has been discussed extensively elsewhere. We see risk assessment as playing two roles outlined in the next part of our paper. One is pre-emptive so as (in regulatory terms) 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. Both roles have inherent problems that comes to light in the COVID-19 pandemic. We then go on to examine who is the legitimate subject of any risk assessment: which ‘employees’, ‘workers’ and even ‘independent contractors’ are the legitimate subject of interest? The fourth part considers what risks are deemed relevant, physical or psychological? Finally, we consider the relevant roles of different actors, which goes beyond a standard dichotomy between ‘governments and individuals’, considering the functions of labour inspection bodies, employers and trade unions, and scope for remedial redress initiated by individuals at work. We note that the aversion of risk raises issues around provision of state support, including inspection, and engagement with collective worker voice that require further attention. We suspect that the similarities and differences that we identify reveal also underlying societal norms, such as the risks which are considered tolerable and how we accept this being decided. In particular, the ways in which risks are framed in the Swedish system as needing to be avoided, as opposed to managed, seems to have made a difference in the context of the coronavirus crisis. What may also have played a part in more effective management of risk is the collective representation of workers through Swedish processes.