As the issue of personal protective equipment (PPE) availability, or lack of, becomes more and more prevalent, we look at the challenges which this presents to employers as well as offering some practical guidance to ensure compliance of the employer's legal duties.

Authors: Tony Cawley, Mary Edis & Scott Taylor

The provision of adequate personal protective equipment (PPE) to health and social care workers in the context of the current COVID-19 pandemic raises numerous challenges including:

  • The wide range of health and social care contexts in which NHS employees work and which are now hazardous work environments due to the risks of infection. These range from secondary care inpatient settings, primary, outpatient and community care settings, ambulances, paramedics, first responders and pharmacists.
  • Differing PPE requirements for different settings and contexts including taking account of the fact that certain work environments and procedures carry higher risk of transmission, in particular when staff are caring for patients where high risk aerosol generating procedures (AGPs) such as tracheostomy and intubation are being performed.
  • Accounting for the fact that the provision of healthcare is dynamic and a single care episode may take place in more than one context.
  • In contexts where COVID-19 is circulating in the community at high rates, health and social care workers may be subject to repeated risk of contact and droplet transmission during their daily work. In routine work there may be challenges in establishing whether patients and individuals meet the case definition for COVID-19 prior to a face-to-face assessment or care episode.
  • The rapidly evolving situation. The pandemic evolution and the changing level of risk of healthcare exposure to COVID-19 in the UK locally and nationally together with a growing understanding of the infection risk by the virus, incubation time, infectiousness and severity of the infection mean that guidance for health and social care workers from UK government and relevant UK Public Health agencies is being developed and updated frequently. Guidance is changing almost on a daily basis, in particular in relation to PPE. On 1st April 2020 PHE provided enhanced PPE recommendations for a wide range of health and social care contexts which revised previous guidance. Absorbing and implementing each change in guidance will be challenging.
  • The requirement of individual and organisational risk assessment at local level to inform PPE use in addition to taking into account national public health guidance.
  • Considerations as to which PPE items can be used for a whole session of work rather than for a single patient or resident contact; if items can be re-usable for advice on suitable decontamination arrangements to be obtained from the manufacturer, supplier or local infection control.

PPE for health and social care workers

Examples of the main types of PPE currently recommended by Public Health England include:

  • Filtering face piece class 3 (FFP3) respirators
    Respirators are used to prevent inhalation of small airborne particles arising from AGPs. FFP3 respirators filter at least 99% of airborne particles They are required to be well fitted, covering both nose and mouth. The HSE state that all staff who are required to wear an FFP3 respirator must be fit tested for the relevant model (according to the manufacturers' guidance) to ensure an adequate seal has been achieved. Other respirators can be used if they comply with HSE recommendations.
  • Fluid resistant surgical masks
    Fluid-resistant surgical masks (FRSM) provide barrier protection against respiratory droplets reaching the mucosa of the mouth and nose. FRSMs should be well fitted and subject to same level of care in use as respirators. FRSMs are for single use or single session use and then must be discarded.
  • Eye and face protection
    Eye and face protection provides protection against contamination to the eyes from respiratory droplets, aerosols arising from AGPs and from splashing of secretions (including respiratory secretions), blood, body fluids or excretions.

Eye and face protection can be achieved by the use of any one of the following:

" surgical mask with integrated visor
" full face shield or visor
" polycarbonate safety spectacles or equivalent

While performing AGPs, a full-face shield or visor is recommended. Eye and face protection should be discarded and replaced and not be subject to continued use if damaged or soiled (for example, with secretions).

  • Disposable aprons and gowns
    Disposable plastic aprons should be worn to protect staff uniform or clothes from contamination when providing direct patient care and during environmental and equipment decontamination.

Long sleeved disposable fluid repellent gowns must be worn when a disposable plastic apron provides inadequate cover of staff uniform or clothes for the procedure or task being performed, and when there is a risk of splashing of body fluids such as during AGPs in higher risk areas or in operative procedures.

  • Disposable gloves
    Disposable gloves must be worn when providing direct patient care and when exposure to blood and or other body fluids is anticipated or likely, including during equipment and environmental decontamination. Disposable gloves are subject to single use and must be disposed of immediately after completion of a procedure or task and after each patient contact followed by hand hygiene.

Employers' duties

An employer has statutory and common law duties to ensure the health, safety and welfare at work of its employees. The statutory duties are governed by the Health & Safety at Work Act 1974 and the various health and safety Regulations which impose specific duties on employers.

Relevant regulations in respect of PPE include:

  • Control of Substances Hazardous to Health Regulations 2002 (COSHH)
  • Management of Health and Safety at Work Regulations 1999
  • Personal Protective Equipment at Work Regulations 1992

In respect of COSHH a biological agent is expressly included within the definition of substances hazardous to health. Regulation 2(1) defines these as "a micro-organism, cell culture or human endoparasite, whether or not genetically modified, which may cause infection, allergy, toxicity or otherwise create a hazard to human health". The definition therefore covers infectious harmful viruses such as COVID-19, insofar as exposure could be shown to arise "out of or in connection with work at the workplace". So the role of the workplace in the transmission of the disease becomes highly relevant.

The statutory requirement to assess risks contained generally within reg.3 of the Management of Health and Safety at Work Regulations 1999, and within COSHH specifically at reg.6, is a cornerstone of the employer's duty. For PPE equipment to be suitable it has to be at least appropriate for the risk and, as far as practicable, effective to prevent or adequately control the risk. The identification of risk is therefore essential to the judgment of suitability.

Breach of health and safety Regulations attracts criminal sanctions but it may be that given the current recognised shortage of PPE, the Health and Safety Executive would not consider it in the public interest to prosecute for failure to comply with legislation. Currently individual COVID-19 cases are not classified as RIDDOR reportable and so would not be investigated.

However, concern is increasing with regard to inadequate supplies of PPE to NHS staff and on 31st March 2020 Dame Donna Kinnar, chief executive of the Royal College of Nursing wrote to the HSE requesting its active intervention in the light of regulatory breaches.

Civil liabilty

A major change to civil liability for breach of statutory duty, including liability under the many health and safety regulations, was made by s.69 of the Enterprise and Regulatory Reform Act 2013 which amended s47 of the Health and Safety at Work Act 1974. As a result breach of a duty imposed by an existing statutory provision is no longer actionable as a civil claim (except in certain circumstances). Claimants are therefore obliged to prove negligence under common law principles.

The government's rationale for this change was to ensure that a claim for damages for breach of health and safety duties could only succeed where an injured employee can prove that the employer has been negligent. This was part of its drive to reduce the "burden of health and safety", and the perception that there is unfairness when regulations impose a strict duty on employers rendering them liable to pay compensation despite reasonable care having been taken to protect employees from harm.

However, it remains arguable that assessment of what constitutes reasonable care for the safety of employees in the tort of negligence should be mediated by reference to the health and safety legislation. After all, if it is a criminal offence to fail to comply with the relevant statutory duty it is difficult to see how the employer can argue that it was reasonable to breach the duty.

Employers also owe a common law duty under four heads: the provision of safe staff; safe equipment; safe place of work; and a safe system of work.

The provision of appropriate safety equipment is a key part of the duty. The extent of the duty depends, amongst other things, on the risk of injury, the gravity of any injury which may result, the difficulty of providing equipment and the availability of the protective equipment.

There may be liability if PPE is not readily available with the result that employees are obliged to take the chance of not using it. In the hospital context, however, where the employer also owes duties to other parties such as patients, complex questions may arise concerning the nature of the different duties owed to employees and to patients.

Claimants will have to prove causation. Whilst arguably it may be difficult for a claimant to establish that he/she contracted COVID-19 from his/her place of work, it is not impossible and a claimant would argue that had he/she not been at work he/she would have been self-isolating at home and protected from exposure.

It is not difficult to imagine that the larger claimant personal injury firms of solicitors are already gearing up to advertise for clients who claim to have been harmed by inadequate protection. Healthcare professionals are at the frontline and have a variety of organisations to whom they may turn to back any complaint and fund litigation.

A large group action seems inevitable. Within such a group action the evidence will be wide-ranging although its precise nature is, as yet, unknown. Obvious candidates as complainants would be healthcare staff and patients but the potential size of any group action is huge.

There may be direct action against theg government or NHS, for example for breach of statutory duty, and there will also almost certainly be actions against individual Trusts based on standard principles of employer's liability.

The Daily Telegraph reported on 2 April 2020 that families of NHS staff who have died due to COVID-19 are to be offered compensation, whether or not they are classed as front-line staff, under a scheme being finalised by government ministers. No figure has yet been agreed for the amount of compensation but the Daily Telegraph understood that it is likely to be around £60,000 per family. However, it is likely that some families may choose to bring a claim against the NHS in negligence if they believe a lack of personal protective equipment caused or materially contributed to the loss of a relative through contracting the virus, as the damages award would be likely to be significantly higher than any such government compensation scheme.

For the time being, employers in the healthcare sector would be well-advised, insofar as reasonably practicable, to take measures including but not limited to the following:

  • Act proactively and ethically to protect the safety of staff in the workplace by the provision of suitable and adequate PPE
  • Proactively review risk assessments and control measures on a very regular basis
  • Monitor and adhere to guidance from government and other public health bodies
  • Ensure staff are trained in the correct use of PPE including "donning" and "doffing" of equipment. Videos are available
  • Ensure staff know what PPE they should wear for each setting and context
  • Ensure staff know which items are subject to single use/sessional use/reusable, and are aware of appropriate disposal and decontamination processes
  • Ensure staff practice hand hygiene extended to exposed forearms after removing any element of PPE
  • Keep clear and comprehensive records of what PPE they have, including detail of the various types of equipment
  • Record those to whom it is provided
  • Keep good records of requests for more equipment and the responses to such requests
  • Log, collate, investigate and where reasonably respond to complaints from staff about the lack of PPE

  • The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.