As thousands of employees return to office buildings all over the UK, it’s important that landlords make the environment as safe as possible to prevent transmission of Covid-19.
Associate Director Matthew Kyle is one of Osborne Clarke’s specialist health and safety lawyers and provides comment here for media on the responsibilities of landlords (some of this content has appeared in Property Week):
What should landlords do to ensure communal areas and ventilation is safe for occupiers post-lockdown?
“Landlords should assess the risk that use of communal areas presents in respect of the potential transmission of COVID-19 and so far as is reasonably practicable implement measures that eliminate or reduce those risks. These measures will be to limit the risk of infection from contaminated surfaces and person to person contact.
“Measures are likely to include a significantly increased cleaning regime to include regular contact points such as door handles, stair rails and lifts (in which capacity may be restricted). Landlords should also look at how people and visitors use the building in terms of access and egress and whether this could/ should limited, think about the flow of people around the building (using floor markers as guides) and how maintenance works and deliveries will be managed in order to minimise people being in close proximity. Landlords that do not implement and facilitate such measures could be found in breach of criminal health and safety law and separately subject to potential civil claims, although the more immediate driver may be reputation damage or tenants seeking to withhold rent on the basis that the premises are not safe.
“It is imperative that landlords communicate fully with their tenants, working with them, so that they understand how they should be using the building safely and also so that they can raise any concerns and discuss any issues arising from their own risk assessments.
“Necessary maintenance and statutory inspections should not have stopped, but landlords need to understand from their contractors how they are managing COVID-19 transmission risk.
“Checking and adjusting air conditioning should be addressed promptly, the current government advice is that air flow should be increased and recirculated air reduced.
“For residential property, measures in respect of communal rooms will depend on whether multiple households are using them and where responsibility lies for furnishings and equipment within them and their cleaning. At minimum, landlords may need to consider what guidance they provide to tenants, but consider whether rooms should be reopened or potentially introduce increased cleaning and waste collection.”
What liabilities do landlords have in these areas if an employee in the building catches Covid-19?
“COVID-19 is a community virus and, evidentially, it will be challenging to link the cause of infection by an individual to something which a landlord has or has not done to manage the risk. However, in circumstances where landlords have failed to implement any measures to control that infection risk or not checked to ensure that they are working effectively, a civil claim or potentially a criminal investigation could have foundation. The reputational fall out and concern created amongst other tenants may, in the immediate term, be the biggest challenge.
“Should an employee or tenant test positive for COVID-19, the individual if an employee should be sent home immediately and the individual will need to order a test via 119 or the Test and Trace website and self-isolate for seven days while waiting for results. In the event of a confirmed case, the landlord should act quickly to deep clean the communal areas and consider whether it needs to make others aware what measures have been taken to isolate the risk of that infection spreading. The scope for liability exposure may be more significant for a landlord that fails to act quickly once they become aware of a COVID-19 case that may relate to their premises.”
Is Covid-19 the next liability gravy train for the PI world?
“A personal injury claim in respect of Covid 19 will only succeed if the Claimant establishes 3 criteria: 1) the Landlord owed a duty of care, 2) there was a breach of that duty and 3) the breach caused damage or loss as a result.
“The first two criteria may be easily satisfied. Landlords have various statutory eg the Management of Health and Safety at Work Regulations 1999, Occupier’s Liability Act 1957 and a common law duty of care to protect tenants, contactors and members of the public accessing communal parts of a building. A breach of that duty may occur where the landlord has failed to conduct an appropriate risk assessment and implement reasonable measures to reduce the risk.
“However, it is the third criteria, causation, which is likely to be the most problematic. Given the nature of the COVID-19 virus, a Claimant will find it difficult, if not impossible, to prove the infection resulted from the communal area of a property rather than the many other sources of infection, eg public transport, workplaces and contact with friends and families. This will remain the case until such time (if ever) medical science evolves to accurately identify the moment and source of infection.”
For more comment for media, please contact Matthew Kyle directly or speak to one of our PR team.