As employers, clubs have specific obligations under relevant health and safety legislation, and also under wider employment law principles, to provide a safe place of work for all employees (including players and non-playing staff).
It is also an express term of the standard player contract that, at all times, a club must maintain and observe a proper health and safety policy for the security, safety and physical well-being of the player when carrying out his duties under this contract.
As the unprecedented circumstances of COVID-19 impose new risks on clubs, which will be faced during a very public (and often controversial) ‘return to work’ (now known as Project Restart), we take a look at the health and safety obligations imposed on clubs and highlight some of the key issues for clubs to consider (and players and staff to be aware of).
The Regulator’s Perspective
With an extra £14m in funding announced for the Health & Safety Executive (HSE) to provide extra resources if needed to put in place further proactive inspections in connection with COVID-19, the HSE will be deploying field inspectors (alongside Premier League assurance officers) to look closely at the measures employers are putting in place to comply with their regulatory obligations – affecting football clubs as much as any other businesses.
Project Restart may well be regarded as something of a forerunner in health and safety terms, meaning it is highly likely to receive attention by regulators, including the Premier League (and likely the EFL with its clubs in due course), in terms of assessing the suitability of the measures which are intended to be implemented and ensuring that those measures are in fact monitored and complied with.
Be aware
- Attention from the HSE can be costly and time consuming, both financially and in terms of personnel hours spent in dealing with the inspectors and subsequent activities.
- HSE inspectors need only identify what they consider to be a material breach of any health and safety provision to enable them to begin rendering invoices to a club as the ‘duty holder’.
- The scheme allows the HSE to bill it’s time (currently £154 per hour) to the duty holder and will include time engaged in drafting statements and reports, issuing notices and activities around ensuring notices are complied with.
Inspectors also have the powers to issue:
Improvement Notices: Which might require a club to take steps to improve its processes and procedures within a specified period of time.
Prohibition Notices: Which will immediately prohibit an activity at a club unless and until agreed systems have been arrived at with HSE.
In reality these notices are often a pre-cursor to prosecution. Whilst both notices are capable of appeal this adds cost and delay and clearly the better strategy is to avoid the service of notices in the first instance.
Clubs should also be aware that, in recent years, the HSE has shown a greater appetite towards prosecuting senior figures within organisations. Directors, Secretaries, Officers and Senior Managers (or anyone purporting to act in such a role) can be individually prosecuted where they:
- are shown to have consented to a breach of the Health & Safety at Work etc. Act 1974; or
- connived in this regard or have been neglectful in allowing the breach to have occurred.
If found guilty these individuals (in addition to or independently of the Club) can be heavily fined or receive sentences to a maximum custodial sentence of two years, or both.
Clearly in the midst of COVID-19, and the changing position that it will present in the coming months, health and safety compliance will represent a very significant risk, financial and personal, to football clubs and those concerned in the management of them.
Whether a pro-active inspection, or in response to a complaint or tip-off about unsafe practices, those at the ‘cutting edge’ of returning to work, such as Project Restart, are likely to be a focus of inspections from the HSE. The powers available to inspectors, whilst wide ranging, are not limitless and it is important to do what you can to protect yours or the club’s position, ensuring compliance before enforcement action is taken.
Clubs have already seen public statements from players expressing concerns over their safety. It would not be surprising, or unwarranted, if a player blew a very ‘public whistle’ on a club’s inadequate measures, which in turn prompted a very public inspection.
The risks posed will be different for each club, though sometimes only subtly, so risk assessments are particularly important. Legal obligations are also placed on a club as the employer under the Management of Health & Safety at Work Regulations – it is a club’s duty to carry out a ‘suitable and sufficient’ assessment of risks to staff and players, and to those who might be affected by your activities. Assessing the risks will be made more difficult in the context of COVID-19 because the guidance and what is known about the virus changes frequently, so review processes also need to be undertaken frequently.
Be aware
What is clear from this is that each club must individually assess the risks to which its employees or others might be exposed.
- It is no defence to have solely relied upon central guidance provided, for example by the Premier League or other body, or risk assessments cribbed or copied from elsewhere - they will not be reflective of the activities which your club may be carrying out.
- A generic risk assessment will be easily spotted by the HSE because it will inevitably miss out obvious risks or be inconsistent with the realities that the HSE see when inspecting.
Particularly in the novel context of COVID-19, your club, as duty holder, should consider whether you are confident in conducting your own risk assessments. If you are in any doubt, you should seek professional advice as early as possible.
By establishing a robust procedure in respect of any regulatory intervention, clubs can potentially exercise a level of control over any inspection or investigation. This also reduces the risk of the Inspector obtaining wider ranging access to your premises or personnel than is actually needed, and misunderstandings occurring from a lack of information because the right people were not spoken to.
In the case a club finds itself under investigation, we strongly suggest that the club involves lawyers early on to give it the best chance of avoiding any prosecution altogether, or at least minimising the level of uncertainty when dealing with the HSE and their action against a club in Court. The benefits of early legal assistance also include:
- Enhancing the quality of the initial investigation, which can prove essential later on.
- Legal Privilege can be arrested over any documents created during investigative activities.
- In shadowing the initial investigation, a club’s lawyers understand the chronology of the investigation and the material generated which provides for sound, early strategic decision making.
Notifying insurers if any enforcement action is taken is also important.
These unprecedented times present a significant amount of risk and liability for clubs. It will not be enough for a club to point to the Premier League / EFL protocols, or what other clubs are doing, to absolve themselves of any liability. It is incumbent on individual clubs to undertake their own risk assessments and satisfy themselves that the protocols, measures and practices and equipment in place allows a club to discharge its duties to its staff and create a safe working environment.
Please get in touch with us if we can help.
