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Thematic chapter

Risk assessment and Covid-19: systems at work (or not) in England and Sweden

Peter Andersson et Tonia A. Novitz
p. 66-79
Cet article est une traduction de :
Évaluation des risques sur les lieux de travail et Covid-19 : les modèles anglais et suédois (et leurs limites) [fr]

Résumés

Le Covid-19 nous incite à réfléchir à la manière dont nous évaluons et répondons aux risques en matière de santé au travail. En Suède, tous les risques graves doivent être évités, tandis qu’en Angleterre, ils doivent l’être « autant qu’il est raisonnablement praticable ». L’évaluation des risques a une fonction préventive, mais elle constitue également un rempart pour protéger l’employeur contre la mise en cause de sa responsabilité. Nous tiendrons compte dans cette analyse du niveau de protection et des facteurs de risque pertinents, ainsi que du rôle joué par les différents acteurs et organismes publics chargés de faire appliquer la loi.

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Notes de l’auteur

This article is part of the project An inclusive and sustainable Swedish labour law – the way ahead, dnr. 2017-03134 financed by the Swedish research council led by Petra Herzfeld Olsson at Stockholm University. The authors would like to thank her and other participants, Niklas Bruun and Erik Sjödin for their helpful comments on earlier drafts.

Texte intégral

1England has one of the highest rates of excess deaths in Europe due to Covid-191, while Sweden has experienced the highest among Nordic countries, although numbers are relatively low compared to European Union (EU) states more generally2. Deaths among the working population in both countries are attributable to approximately 10% of the national totals3, while many more have experienced long-term illness following infection (« long-Covid » as it has come to be known)4. This article considers how these two countries have addressed the work-related risks associated with the coronavirus pandemic, evaluating their systems of assessment and implementation of precautionary measures. The focus is on England, rather than the wider United Kingdom, as this is the level at which lockdown and other public health measures have been implemented; indeed, there has been higher praise for policies implemented in other parts of the UK, such as Scotland5. Sweden has provided an overarching national response, avoiding lockdowns. In both countries risk assessment plays a pre-emptive role (preventing harms) and a defensive role (preventing liability). Our comparative project exposes the limitations and different objectives of the English and Swedish systems. In England, risks merely need to be managed insofar as this is reasonably practicable while, in Sweden, it is necessary to avoid serious risks. We also identify three crucial factors which affect the efficiacy of English and Swedish responses to the COVID-19 crisis: who is the legitimate subject of any risk assessment; what risks require preventative or remedial action; and which actors wield influence in these processes.

I - What is meant by « risk » and its « assessment »?

2The first Swedish law on work environment - the Work Hazards Act of 1889 - was inspired by the old English Factory Acts of the 19th century6, which stated the fundamental principle that the employer has an obligation to prevent the employee being exposed to illness or accidents. However, the scope of that duty differs in England and Sweden. In England, the Health and Safety at Work etc. Act 1974, section 2(1) states that: « It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees » (our emphasis). Chapter 3, section 2 of the Swedish Work Environment Act (SWEAct) states that the employer must take all necessary measures to prevent the employee from being exposed to illness or accidents. The UK Health and Safety Executive (HSE) aims for risks to be « as low as reasonably possible », weighing risks against the trouble, time and money needed to control them7, and has a framework for deciding tolerability of risk, under which risks can be broadly acceptable, tolerable or unacceptable8. However, there are some anomalies, since 53% of sudden injury deaths in the workplace have occurred in what are deemed low risk working activities9. In contrast, the Swedish Work Environment Authority (WEA) states on its website that the purpose or risk assessments is to make sure that no one becomes ill, injured or dies from the job10. Risks are to be classified as serious or not serious11, such that serious risks must be removed while others can be disregarded. The English approach may lead to more risks being identified, not all of which may reasonably be practicable to address, while there is little room for middle ground in Swedish law and practice12.

  • 13 J. Steele, op. cit., p. 6 ; S. O. Hansson, The Ethics of Risk, Palgrave Macmillan, 2013, p. 9.
  • 14 J. Steele, op. cit., p. 6.
  • 15 S. O. Hansson, op. cit., p. 9.
  • 16 M. Rausand, Risk assessment ; theory, methods, and applications, Wiley, 2011, p. 7. See also N. Luh (...)

3Often, the term risk is connected to a calculable probability13, but there may be complex hazards not amenable to simple calculation14. Usually, we talk about risk not only as a probability but also in terms of the severity of the negative outcome15. The concept of risk assessment can be defined as the overall process of risk analysis and risk evaluation. Risk analysis involves the systematic use of available information involving three main steps: hazard identification, frequency analysis and consequence analysis. Risk evaluation is a process by which judgements are made regarding the tolerability of the risk following a risk analysis and taking into account further socioeconomic and environmental factors16.

  • 17 Ratified by both the UK and Sweden in 2008.
  • 18 Ratified by both England and Sweden, although Sweden is additionally party to the enhanced article (...)
  • 19 P. Andersson, Vidta alla åtgärder som behövs, Jure, 2013, p. 70. Also, see L. V. Westerhäll, « Risk (...)
  • 20 As cited in J. Steele, op. cit., p. 8.

4International standards regarding risk assessment can be found in the ILO Promotional Framework for Occupational Safety and Health Convention no. 187 of 200617 and Article 3 of the European Social Charter18. The obligation to evaluate and avoid risks is also prominent in Article 6 of the EU Framework Directive 89/391/EC on health and safety of workers. These obligations are transposed in the UK into the Management of Health and Safety at Work Regulations 1999, while the Swedish Work Environment Act (SWEAct) is complemented by more detailed rules in the WEA’s Provision (AFS). In both the English and Swedish systems, the requirement placed on employers to assess risks and implement a plan based on that assessment is aimed at ex ante prevention of foreseeable harms19. The trade off is the defensive role that a risk assessment and its implementation may play, limiting an employer’s liability ex post facto. According to Luhmann, risk assessment is akin to an « advance confessional », which implies that its proper conduct leads to absolution20.

  • 21 U. Beck, Ecological Policies in an Age of Risk, Polity Press, 1995, p. 58.

5The pre-emptive role of risk assessment is compromised if there is too much focus on the formal documentation of a risk assessment, instead of taking action to remove risks. It will depend on its coverage, namely whether all those foreseeably harmed are covered. The exclusion of certain harms will also affect its efficacy. For example, a focus on merely physical harm as opposed to psychological and social concerns may have limited impact. Moreover, there will need to be reflexivity, so that as new potential harms are identified, they are also addressed. There remains the danger that a poorly conducted or implemented risk assessment can lead to injury for the employee without responsibility for the employer. Beck has argued that the idea of responsibility has been weakend by the focus on risk assessments in industrial society21. We discuss below how this dynamic has played out in the context of English and Swedish systems for identifying and ameliorating risks in the Covid-19 crisis, and whether employers rather than workers have been protected.

II - Coverage of risk assessments: employees, workers and those deemed self-employed

  • 22 ILO World Employment and Social Outlook Report, The Role of Digital Labour Platforms in Transformin (...)
  • 23 See Public Health England Report, Disparities in the Risk and Outcomes of COVID-19 (2020), chapters (...)
  • 24 A. Moretta and D. Whyte, op. cit., p. 9.

6The increase in hire of services through digital platforms during the pandemic, for example in relation to home deliveries, indicates increased precarity and vulnerability, especially since those who perform such services are often hired ostensibly as independent contractors without employment or social security entitlements22. There is also evidence that ethnic minorities are disproportionately represented in those exposed to COVID-19 through their work23, including the care and delivery work which has been increasingly casualised. This can limit the coverage of risk assessment, so that responsibility by employers is effectively outsourced24.

  • 25 WEA: https://www.av.se/om-oss/
  • 26 SWEAct also covers categories such as persons undergoing education or training, including persons i (...)
  • 27 By virtue of s.230(3)(b) of the Employment Rights Act 1996 (ERA).

7The Swedish WEA’s slogan is: « Everyone wants to and can provide a good work environment »25. In general, the idea is that « more is more »26. The UK HSE has been reluctant to embrace such a universal principle, supporting the government’s technical legal distinctions between « employees », workers who are not employees (but are termed « limb (b) workers »)27, and independent contractors. These categories have implications in terms of health and safety law.

  • 28 R (Adiatu) v HM Treasury [2020] EWHC 1554, 15 June 2020.
  • 29 R (IWGB) v The Secretary of State for Law and Pensions [2020] EWHC 3039, 13 November 2020.
  • 30 Ibid., §123-128.
  • 31 Ibid., §129-140.

8In England, Uber drivers were unsuccessful in their challenge to exclusion from statutory sick pay and the Coronavirus Job Retention Scheme (CJRS), despite the equality-related issues raised in that judicial review28. However, subsequent proceedings brought in the High Court by the Independent Workers’ Union of Great Britain (IWGB) just prior to British exit of the EU (Brexit) were successful in establishing that English law and HSE practices were in breach of the « Framework Directive » 89/391/EC and the « daughter » Directive 89/656/EC relating to PPE29. It was observed that UK employers have duties to employees, workers and independent contractors under sections 2 and 3 of the Health and Safety at Work Act 1974 to avert risks to health and safety. Moreover, limb (b) workers should have protection from detriment when they refuse to work where there is serious or imminent danger under section 44 of the Employment Rights Act (ERA) 1996, although only more privileged « employees » can claim protection from dismissal under s.10030. Limb (b) workers should also have access to PPE31.

  • 32 European Committee of Social Rights, Conclusions XXI-2 - United Kingdom on Article 3, 8 December 20 (...)
  • 33 Uber drivers were found to be workers in Uber BV and others v Aslam and others [2021] UKSC 5, 19 Fe (...)

9These entitlements (curiously opposed by the HSE) are more minimal than was recommended by the Council of Europe’s European Committee of Social Rights (ECSR). The ECSR has asserted in relation to UK compliance with Article 3 of the European Social Charter that « all workers, including the self-employed must be covered by health and safety at work regulations as long as employed and self-employed workers are normally exposed to the same risks »32. That approach would be more helpful, given current uncertainties regarding the boundaries of worker status in the UK gig economy33.

  • 34 Under Chapter 3 Section 2 and Chapter 3 Section 12 second paragraph of the SWEAct, although there a (...)
  • 35 H. Gullberg and K.-I. Rundqvist, Arbetsmiljölagen [Work Environment Act], Norstedts Juridik, 2018, (...)

10In Sweden, as in England, working people can be divided into various categories. Swedish classifications consist of employees, agency workers, workers equated to employees (similar to English « limb (b) workers »), and the self-employed. The SWEAct and related provisions give rights to employees, but agency workers must also be protected by both their employer, the agency, and by their « hirer »34. In this way, in relation to risk assessments, the agency worker has a kind of « double protection ». Workers that are equated to employees are covered by work environment risk assessments and protected from both detriment and dismissal when lawfully exercising a right to walk out where there is serious and immediate danger to their health35.

11The category that is most vulnerable, when it comes to coverage of protection by the Swedish Work Environment Act, is the self-employed. However, in Sweden, those who work via self-employment companies or digital platforms have been targeted by a new project commissioned by the Swedish Government and carried out by the WEA36. In that way, « gig » workers can be the subject of inspections and currently 50 are planned. The legal issue is whether the companies in question have work environment responsibility, and the merits of this project have been fiercely contested. So far the WEA has not been successful in attributing employer responsibility to platform companies in court37. Regardless of that dispute, a remaining difficulty is that the Swedish model is based on collective rights and state supervision. Self-employed persons that are not union members often in practice fall outside that protection, lacking the capacity to make demands concerning risk assessments and their implementation. In this sense, despite the greater efforts made in Sweden to secure wider universal coverage, there are still notable gaps.

III - Which are the main risks?

12The scale of the risks associated with Covid-19 and its appropriate classification as a biological agent remain controversial, as we are seeing in litigation at EU level38. According to the Swedish WEA website, a « risk is the probability of a dangerous event or exposure occurring and the consequences if it occurs, in the form of injury or ill health »39. In England, the HSE, has a similar definition, stating on its website that under the relevant rules employers must identify hazards and « decide how likely it is that someone could be harmed and how seriously (the risk) »40. After an initial attempt to underplay coronavirus-related risks, the HSE 2020-21 report has recognised that: « Industries and sectors that were previously considered low risk from a worker protection or public safety perspective, are now considered high risk »41. Both Swedish unions42 and the WEA43 see performing risk assessments as vital to prevent Covid-19 at work.

13HSE guidance on risk assessments relating to Covid-19 invited UK employers to identify what work activity or situations might cause transmission of the virus, think about who could be at risk, decide how likely it is that someone could be exposed, and act to remove the activity or situation, or if this is not possible, control the risk44. This guidance has to be read in tandem with more detailed Government advice, applicable in England in the form of « Guidance » regarding what is safe in different types of workplace, on which there was consultation with Public Health England (PHE)45. Indeed, PHE46 frequently revised health-related guidance on tolerability of Covid-related risks47, but did not always responded with more stringent standards, retaining questionable advice on PPE48, Moreover, « Guidance » focused on reducing physical risks at work through handwashing and social distancing, not the psychological harms arising from potential exposure, or increased workloads and work-related stress49.

14The UK Government advised that employers « share the results » of their completed risk assessment with employees and that larger businesses (with over 50 employees) publish it on their websites. Afterwards, employers and businesses should display « a notification in a prominent place in your business and on your website » indicating they are « COVID-secure »50. This nomenclature « COVID-secure »51 has arguably created a false sense of confidence in the formalistic measures taken, regarding hand sanitizers or use of screens. Very few notifications regarding Covid-19 infections at work have been made to the HSE52, which may be due to a problematic assumption that if there is employer compliance with official « Guidelines » then this did not happen at work.

15The Swedish WEA has received more than 40.000 notifications of serious Corona incidents53, but there is a concern that sending a notification can lead to a false sense of having acted to protect workers against the virus, while in reality having done nothing54. In 2020, the WEA quickly acknowledged the virus as a work environment hazard (risk class 3) and took regulatory steps in accordance with the Provisions on Risk of Infection 2018.55 While physical risks of infection are a clear priority, the WEA has addressed fear and anxiety relating to infection on its website as an important issue56. When it comes to stress and heavy workloads, the general WEA Provisions on Organizational and Social Work Environment apply57. Heavy workload in the health care sector during the pandemic, in combination with limited possibilities to recuperate, have numerous times in the Swedish debate been described as a « ticking time bomb »58.

16In England, new emphasis on remote working did not lead to specific guidance on risk assessments concerned with work at home. The rather lax implementation of the EU Telework Framework Agreement of 2002 through consultative practices and advice from the HSE continues without discussion of its relevance in the coronavirus pandemic59. However, in Sweden, it is acknowledged that this type of work leads to new work environment risks and new types of risk assessment. An old rule excluding « uncontrollable work » from home from the scope of the SWEAct was abolished in 200560. The main legal issue is to what extent the employer can exercise power in the worker’s home61.

17Finally, both English and Swedish regimes regarding risk assessment are problematic in that they do not factor in dependents at home who, in a high risk group, may need to be protected from exposure to coronavirus. In England, « who should go to work » was considered in the « Guidance », making provision for those who were symptomatic or were otherwise required to self-isolate or shield62. There was also acknowledgement of PHE’s identification of those more prone to serious illness if exposed to coronavirus, alongside a recommendation of sensitivity relating to « protected characteristics ». However, the issue of « associative » disability63, including the need to protect a vulnerable family member from potential infection, was not explicitly considered as a relevant risk. While employers could (and should) opt to respond under discrimination law, they were not prompted to do so. Similarly, in Sweden, risk of illness for a worker is the responsibility of the employer but less attention is paid to the need for protection of a vulnerable family member. It is possible to get compensation from social security for staying home from work to protect family member that is vulnerable to Covid-19, but only under very special circumstances, where the worker is paid by the government to care for the family member64.

18In summary, the risk assessment process in England has failed to deal with crucial issues relating to the coronavirus pandemic, concerned with psychological risks, risks associated with home work and risks to vulnerable dependants. The Swedish system, while imperfect regarding the latter, has offered more effective intervention. In both systems, there will now need to be further reflection on the role of testing and vaccination, given recent developments. In Sweden, especially in the public sector, employees have strong protection against employer’s demands to get vaccinated65. The right for the employee to refuse to take a Covid test is somewhat weaker66. In England at present there is no requirement of compulsory vaccination other than that controversially now introduced with respect to workers in registered care homes and new plans for NHS staff67. In both systems, measures can only be taken in response to risks that are regarded otherwise as lawful and human rights compliant.

IV - Actors and issues of agency

19We might expect the chief health and safety actors in both England and Sweden to be the two statutory bodies responsible for inspection, namely the HSE and the WEA, respectively. However, the HSE suffers in comparison with its Swedish counterpart, to the extent that the Government and PHE disrupted exercise of its statutory role, prompting concern that the HSE had « gone missing »68. Also significant was the 40% reduction in Government funding of the HSE between 2010 - 202069, which could not be remedied by a quick injection into its budget at the start of the pandemic70. Not only were risk assessments limited in their scope, but there was little attempt by the HSE to check their implementation by employers. Spot checks were outsourced and carried out by telephone calls71, so that few improvement notices or prosecutions were issued72. In Sweden, the Director General of the WEA stressed the need for thorough inspection of whether an employer made and implemented a risk assessment73.

20Further, the relative efficacy of the HSE and WEA may be attributed not only to funding, but to the respective roles of safety representatives in the English and Swedish systems (A), the scope of the right to stop work in response to risks (B), and other post facto options for enforcement by workers (C).

A - Safety representatives

21Under UK law, safety representatives are provided for where there is a trade union formally recognised by the employer74. Where there is no recognised trade union, the employer can choose whether to consult employees directly or through elected representatives75. The HSE brochure issued in 2013 on « Consulting employees on health and safety: A brief guide to the law » sets out these legal obligations76, but has not been updated and is downplayed by the HSE in relation to coronavirus risk assessments. The HSE now recommends merely that employers « talk to workers », since « they will usually have good ideas »77, seemingly suggesting that it is lawful to bypass established safety representatives. In another pamphlet, « Talking with your workers about preventing coronavirus », consulting health and safety representatives is presented as an option only once (on page 2) and then is not mentioned again78. In this way, English employers neglected the energetic representations made by trade unions regarding checklists, PPE guidance and other matters79.

22In Sweden, safety representatives have played a more active role. They are commonly appointed by a trade union which has concluded a collective agreement to which the employer is party80. Although the number of appointed safety representatives and the total time they spend on their task may be decreasing81, they still devote an equivalent to more than 5000 full time jobs82, compared to less than 300 WEA inspectors83. A safety representative « is responsible, within her or his safety area, for monitoring the safeguards against illness and accidents and compliance by the employer with the requirements » of risk assessments84. In the context of the coronavirus pandemic, the WEA has called upon employers to « get help from safety representatives and have good dialogue with the staff’ when making risk assessments. Also, « safety representatives and employees participating in the various tasks must be involved »85. Further, under Swedish law, safety representatives can call upon employers to comply with risk assessments without delay, and if not satisfied with the response can seek intervention from the WEA86. For example, in November 2020, the WEA approved the request of a safety representative for a specific risk assessment in a preschool regarding prevention of coronavirus infection87. As of November 2021, 294 safety representatives had used the legislative provisions to make demands against employers concerning Covid-19 risk assessments88. The power to inform the WEA may sound weak, but in practice this usually carries considerable weight prompting employer compliance.

B - The right to stop work

23Swedish safety representatives arguably gain greater influence from their ability to suspend work temporarily pending a decision by the WEA89. Before doing so, the safety representative must make a kind of risk assessment concerning the work that he or she is stopping, considering whether the work involves a serious and immediate danger to the life or health of an employee. That the danger must be immediate means the injury can occur after being exposed to a hazard for a short period of time. By October 2021, there had been 134 stoppages of this nature concerning coronavirus, which is a significant number90. For example, in the Serafen-case91, work was stopped to ensure that PPE included face coverings as well as visors, and the WEA in due course agreed, prohibiting work proceeding until this was done. However, this was not always a successful approach, in a case concerning handling of cash on buses, in March 202092, the WEA argued that work should resume on the basis that Covid-19 would not spread throughhandling of objects.

  • 93 Chapter 3, Section 4 SWEAct.
  • 94 Prop. 1976/77:149 p. 395. AD 2001:10.
  • 95 AD 2001:10.
  • 96 AD 2001:10.

24Notably, this right to stop work which involves immediate and serious danger to life or health is also available to all kinds of workers in Sweden without detriment or dismissal93, although not the self-employed. This is consistent with entitlements recognised under Article 13 of ILO Convention no. 155 (ratified by Sweden although not the UK) and arising by virtue of Articles 8(4) and 8(5) of the Framework Directive 89/391/EC. Such a stoppage is permitted in Sweden where the aim is to consult urgently with a supervisor or safety representative94. Before exercising the right to refuse work, the worker in question must have assessed the danger. If that assessment subsequently turns out to be incorrect, there will still be protection from liability if at the time of the stoppage that assessment seemed reasonable and therefore justifiable95. However, there will be a right to dismiss where the assessment is clearly unreasonable or where a stoppage is called despite a finding by the WEA that there is no immediate and serious danger96.

  • 97 Following the IWGB case n.29 above; by virtue of the s.44 ERA.
  • 98 Under s.100 ERA.
  • 99 Rodgers v Leeds Laser Cutting Limited, Employment Tribunal, per Judge Anderson, 1 March 2021.
  • 100 See Castano v London General Transport Services Ltd [2020] IRLR 417.
  • 101 Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683.

25In the UK, « in circumstances of danger » which « are reasonably believed to be serious and imminent », it is possible to leave the workplace (and refuse to return) or to take appropriate stes to avert that danger. Workers can now claim protection from detriment97, while employees have a superior claim to protection from dismissal98. At the time of writing, there has been only one English employment tribunal case where a claimant relied on these provisions to assert that potential coronavirus infection constituted such a danger. On the facts, the tribunal found that the employee was stopping work due to general concerns regarding the vulnerability of his children during the lockdown, rather than any specific risk of infection at work99. Other case law indicates that this is only an option in extremis, where there is no safety representative to take up the concerns100. Notably, one cannot seek protection from dismissal when taking strike action in response to a potentially dangerous situation101. These rights are not easy to exercise.

C - Other options for enforcement

  • 102 Breach of Management of Health and Safety at Work Regulations 1999, Reg. 8 can lead to a fine of up (...)
  • 103 See Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, HL; and Barber v Somerset County Council [2 (...)
  • 104 Ibid., p. 176.
  • 105 See the Enterprise and Regulatory Reform Act 2013, s.69.

26In England, there remain residual criminal penalties102 and the prospect of civil litigation103 as a deterrent to mitigate risk, which could arise in relation to Covid infection at work. However, the fact of risk assessment (whatever its paucity) may indicate that liability would be inappropriate, given the tendency for the statutory provisions regarding health and safety to inform the content of any duty of care owed by an employer to employees104. Further, enforcement through a statutory tort is no longer available due to legislation introduced in 2013105.

  • 106 Chapter 6, Section 6 SWEAct.
  • 107 Chapters 39-41 the Swedish Social Insurance Code 2010 and collective agreement insurance «Trygghets (...)
  • 108 Section 35 in «Trygghetsförskring vid arbetsskada».

27In Sweden individual employees and workers cannot make legal claims in courts against employers for breach of their statutory obligations. The safety representatives can inform the WEA, which can take legal action against the employer106. Further, compensation for work injuries are covered by social security law and collective insurance, although it is often difficult to get compensated for work injuries caused by illness rather than a sudden accident107. An incentive for employers to agree on collective insurance is that, once they do, employees are not able to make any claims again the employer for occupational injuries108. This means there are no tort or contract cases about work injuries in Sweden - for coronavirus or otherwise. This lack of individual agency in Swedish work environment law may seem troubling, but the English model does not necessarily ensure risk averse behaviour from employers either.

Conclusion

  • 109 IWGB case, op. cit.

28Covid-19 has exposed the tendency of severe health and safety risks to be tolerated in England. Judicial review brought by an independent trade union led to some extension in protection for those in precarious occupations who are deemed « workers »109. However, that litigaton was not supported by the HSE, which also did not promote the active involvement of trade union and safety representatives in the handling of Covid-19 risk assessments. The Guidance for risk assessments seemed focussed on making English workplaces appear « COVID-Secure », rather than addressing physical or psychological risks systematically. One suspects that measures were taken to avert responsibility rather than genuinely avert risk. The HSE emerges in this process as an underfunded body with relatively minor influence when compared to its Swedish counterpart, the WEA. A right to stop work remains available to English employees (without fear of dismissal) and to « workers » now without fear of « detriment », but only in very limited circumstances, remaining a poor substitute for an effective risk assessment and public inspection system. While criminal prosecutions and civil litigation in the UK may offer a deterrent, there is little evidence of their use (as yet) in response to risks arising at work in the context of the coronavirus pandemic.

29The Swedish work environment is based on the idea that employers must take all measures necessary to prevent injuries, illness and death. This is a more ambitious aim reflected by a wider embrace of those who should be protected. There is also greater capacity for safety representatives to demand that risk assessments be carried out and implemented. Rights to stop work provide a basis for the influence of workers’ collective representatives, with residual protections for individual employees and workers who see the need to take that initiative. While better funded and more actively promoting coronavirus precautionary measures, the Swedish system of work environment law limits the capacity of individuals to take litigious action in contract and tort. Prevention and implementation are both channeled through the WEA, while compensation comes not from the employer but the state. We appreciate that no system is perfect, but we do acknowledge that if we return to ex ante objective of effective risk assessment, the Swedish system has been shown to be operative and active in response to Covid-19, offering a better justification for any defence than is to be found in England.

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Notes

1 See https://www.kingsfund.org.uk/publications/deaths-covid-19

2 Statistics Sweden: https://www.scb.se/hitta-statistik/artiklar/2021/overdodlighet-i-europa-under-2020/

3 See in England: https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/deathsregisteredweeklyinenglandandwalesprovisional/weekending16april2021#deaths-registered-by-age-group; and in Sweden: https://www.socialstyrelsen.se/statistik-och-data/statistik/statistik-om-covid-19/statistik-over-antal-avlidna-i-covid-19/

4 E. Mahase, « Covid-19: What do we know about “long covid”? », British Medical Journal, 2020, p. 370.

5 P. James (ed.), HSE and Covid at Work: A case of regulatory failure, Institute of Employment Rights, 2021, p. 20.

6 H. Sellberg, Staten och arbetarskyddet 1850-1919, Almqvist & Wiksell, 1950, p. 14.

7 https://www.hse.gov.uk/managing/theory/alarpglance.htm. Also, see J. Steele, Risks and Legal Theory, Hart Publishing, 2004, p. 169.

8 https://www.hse.gov.uk/aboutus/timeline/index.htm

9 A. Moretta and D. Whyte, International Health and Safety Standards and Brexit, Institute of Employment Rights, 2020, p. 29.

10 WEA: https://www.av.se/arbetsmiljoarbete-och-inspektioner/arbeta-med-arbetsmiljon/systematiskt-arbetsmiljoarbete-sam/riskbedomning/

11 Ibid.

12 The nature of work can in some instances limit work environment responsibility, Chapter 2 Section 1 SWEAct. For example, working as a fire-fighter involves risk of fire.

13 J. Steele, op. cit., p. 6 ; S. O. Hansson, The Ethics of Risk, Palgrave Macmillan, 2013, p. 9.

14 J. Steele, op. cit., p. 6.

15 S. O. Hansson, op. cit., p. 9.

16 M. Rausand, Risk assessment ; theory, methods, and applications, Wiley, 2011, p. 7. See also N. Luhmann, Risk: A Socioligical Theory, De Gruyter, 1993.

17 Ratified by both the UK and Sweden in 2008.

18 Ratified by both England and Sweden, although Sweden is additionally party to the enhanced article 3 of the Revised European Social Charter 1996.

19 P. Andersson, Vidta alla åtgärder som behövs, Jure, 2013, p. 70. Also, see L. V. Westerhäll, « Risk - och händelseanalyser på arbetsmiljö- respektive hälso - och sjukvårdsområdena - en jämförelse av preventionsarbetet », Nordisk Socialrättslig Tidskrift, no. 17-18, 2018.

20 As cited in J. Steele, op. cit., p. 8.

21 U. Beck, Ecological Policies in an Age of Risk, Polity Press, 1995, p. 58.

22 ILO World Employment and Social Outlook Report, The Role of Digital Labour Platforms in Transforming the World of Work, 2021, p. 153; and A. Adams-Prassl, T. Boneva, M. Golin, C. Rauh, « Inequality in the Impact of the Coronavirus Shock : Evidence from real time surveys », Journal of Public Economics, 2020, p. 189.

23 See Public Health England Report, Disparities in the Risk and Outcomes of COVID-19 (2020), chapters 4 and 5 : https://www.gov.uk/government/publications/covid-19-review-of-disparities-in-risks-and-outcomes

24 A. Moretta and D. Whyte, op. cit., p. 9.

25 WEA: https://www.av.se/om-oss/

26 SWEAct also covers categories such as persons undergoing education or training, including persons in institutional care performing work that they have been assigned. See Chapter 1 Section 3.

27 By virtue of s.230(3)(b) of the Employment Rights Act 1996 (ERA).

28 R (Adiatu) v HM Treasury [2020] EWHC 1554, 15 June 2020.

29 R (IWGB) v The Secretary of State for Law and Pensions [2020] EWHC 3039, 13 November 2020.

30 Ibid., §123-128.

31 Ibid., §129-140.

32 European Committee of Social Rights, Conclusions XXI-2 - United Kingdom on Article 3, 8 December 2017.

33 Uber drivers were found to be workers in Uber BV and others v Aslam and others [2021] UKSC 5, 19 February 2021; but Deliveroo couriers were not so successful. See IWGB v CAC and Roo Foods Ltd [2021] EWCA Civ 952, 24 June 2021.

34 Under Chapter 3 Section 2 and Chapter 3 Section 12 second paragraph of the SWEAct, although there are minor differences in wording. See also the WEA’s Provisions on Systematic Work Environment Management, AFS 2001:1.

35 H. Gullberg and K.-I. Rundqvist, Arbetsmiljölagen [Work Environment Act], Norstedts Juridik, 2018, p. 57.

36 WEA report 2020-02-18 no. 2018/035377: https://www.av.se/globalassets/filer/publikationer/rapporter/delrapport-regeringsuppdraget-om-tillsynsinsats-med-inriktning-pa-nya-satt-att-organisera-arbete.pdf

37 Kammarrätten i Göteborg, case 4120-21, 19 November 2021. Also, see WEA: https://www.av.se/globalassets/filer/publikationer/rapporter/delrapport-regeringsuppdraget-om-tillsynsinsats-med-inriktning-pa-nya-satt-attorganisera-arbete.pdf

38 See Case T-484/20 SATSE v Commission: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX: 62020TN0484

39 WEA: https://www.av.se/arbetsmiljoarbete-och-inspektioner/arbeta-med-arbetsmiljon/systematiskt-arbetsmiljoarb ete-sam/riskbedomning/

40 https://www.hse.gov.uk/simple-health-safety/risk/index.htm

41 HSE Business Plan 2020/21: https://www.hse.gov.uk/aboutus/strategiesandplans/businessplans/plan2021.pdf (p. 21).

42 https://www.arbetarskydd.se/arbetsmiljo/stor-oro-hos-vardpersonal-efter-coronadodsfall-6993941?source=carma&utm_custom[cm]=302753248,33270&=

43 Arbetarskydd: https://www.arbetarskydd.se/arbetsmiljo/har-ar-arbetsmiljoverkets-rad-om-corona-6989415?source=carma&utm_custom[cm]=302753248,33270&=

44 https://www.hse.gov.uk/coronavirus/working-safely/index.htm#risk_assessment; https://www.hse.gov.uk/coronavirus/assets/docs/risk-assessment.pdf

45 https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19, now updated as of 15 April 2021. Note that PHE has since been replaced by the National Institute for Health Protection, see: https://www.gov.uk/government/publications/the-future-of-public-health-the-nihp-and-other-public-healthfunctions/the-future-of-public-health-the-national-institute-for-health-protection-and-other-public-health-functions

46 A. Watterson, « COVID-19 in the UK and occupational health and safety : predictable not inevitable failures by government, and trade union and nongovernmental organization responses », New Solutions: A Journal of Environmental and Occupational Health Policy, vol. 30(2), 2020, p. 89.

47 Ibid., p. 90.

48 As reported by K. D. Ewing and Lord J. Hendy, « Covid-19 and the Failure of Labour Law », Industrial Law Journal, Part. 1, vol. 49(4), 2020, p. 529; https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/construction-and-other-outdoor-work

49 See the risks for example identified by the Government guidance in shops, for which see: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/shops-and-branches. The stresses associated with, for example, covering for missing colleagues or managing breaches of face covering protocols are not identified.

50 For the form of the notice, see: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/951736/staying-covid-19-secure-notice.pdf

51 See HSE Business Plan 2020/21: https://www.hse.gov.uk/aboutus/strategiesandplans/businessplans/plan2021.pdf, p. 22.

52 R. Agius, « Disease and Death from Work: RIDDOR and covid-19 », Occupational Medicine, vol. 70, 2020, p. 470; and https://www.theguardian.com/world/2021/may/22/thousands-of-work-related-covid-deaths-go-unreported-in-uk

53 WEA: https://www.av.se/om-oss/press/jobbrelaterade-coronaanmalningar/tillbudsanmalningar/

54 Confederation of Swedish Enterprise: https://www.svensktnaringsliv.se/sakomraden/arbetsmiljo/arbetsmiljoverkets-tvara-kast-anmarkningsvarda_1168048.html

55 AFS 2018:4. In accordance with the Work Environment Act 1977 and Provisions on Systematic Work Environment Management 2001; AFS 2001:1.

56 WEA: https://www.av.se/halsa-och-sakerhet/psykisk-ohalsa-stress-hot-och-vald/oro/

57 AFS 2015:4.

58 See for example Etc: https://www.etc.se/debatt/corona-gor-psykisk-ohalsa-till-tickande-bomb; and Swedish Radio : https://sverigesradio.se/artikel/7607016

59 See https://resourcecentre.etuc.org/sites/default/files/2020-09/Telework%202002_Framework%20Agreement%20-%20EN.pdf; there seems to have been no meaningful HSE activity on this issue since 2007: https://www.hse.gov.uk/research/rrpdf/rr600.pdf. See T. Prosser, « Europeanization through procedures and practices? The implementation of the telework and work-related stress agreements in the UK and Denmark », Transfer, vol. 18(4), 2012, p. 447.

60 See Chapter 3 section 4 and Chapter 6 SWEAct; also https://www.av.se/halsa-och-sakerhet/sjukdomar-smitta-och-mikrobiologiska-risker/smittrisker-i-arbetsmiljon/coronaviruset/arbetsmiljon-vid-hemarbete/

61 Swedish Agency for Work Environment Expertise: https://mynak.se/individuella-forutsattningar-spelar-stor-roll-for-arbetsmiljon-nar-vi-arbetar-hemifran/

62 See again, for example : https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/shops-and-branches#shops-3-1

63 C-303/06 Coleman v Attridge [2008] ECR I-5603.

64 The Swedish Social Insurance Agency: https://www.forsakringskassan.se/privatpers/coronaviruset-det-har-galler

65 P. Herzfeld-Olsson in Lag och Avtal : https://www.lag-avtal.se/arbetsratt/chefen-kan-inte-tvinga-dig-att-ta-vaccin-7006696

66 Swedish Trade Union Unionen: https://www.unionen.se/story/aktuellt/kan-jobbet-krava-corona-test

67 The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which may have set a new precedent. Discussed at: https://www.gov.uk/government/news/everyone-working-in-care-homes-to-be-fully-vaccinated-under-new-law-to-protect-residents. For Government proposals concerning NHS staff, see: https://www.gov.uk/government/consultations/making-vaccination-a-condition-of-deployment-in-the-health-and-wider-social-care-sector

68 A. Watterson, op. cit., p. 89.

69 https://www.hse.gov.uk/aboutus/strategiesandplans/businessplans/plan0910.pdfhttps://www.hse.gov.uk/aboutus/strategiesandplans/businessplans/plan1920.pdf

70 P. James, op. cit., p. 29.

71 Ibid., p. 30.

72 Work and Pensions Committee report, Department of Work and Pensions’ Response to the Coronavirus Outbreak, published on 5 February 2021 HC 178 (2019–21), discussed by K. D. Ewing and Lord J. Hendy, op. cit., p. 525.

73 https://www.arbetarskydd.se/arbetsskador/det-finns-mer-att-gora-pa-arbetsplatserna-7011496

74 See section 2 of the Health and Safety Act 1974; and the Safety Representatives and Safety Committees Regulations 1977.

75 Health and Safety (Consultation with Employees) Regulations 1996, Regs 3 and 4.

76 See https://www.hse.gov.uk/pubns/indg232.pdf (p. 2).

77 See https://www.hse.gov.uk/simple-health-safety/risk/steps-needed-to-manage-risk.htm

78 See https://www.hse.gov.uk/coronavirus/assets/docs/talking-with-your-workers.pdf (p. 2).

79 See for example https://www.tuc.org.uk/tuc-covid-19-risk-assessment; https://unitetheunion.org/campaigns/coronavirus-covid-19-advice/; and https://www.unison.org.uk/coronavirus-rights-work/. Discussed by A. Watterson, op. cit., p. 90.

80 Chapter 6 Section 2 SWEAct.

81 J. Sjöström et K. Frick, Worker participation in the management of occupational safety and health - qualitive evidence from ESENER, Country report Sweden (European Agency for Safety and Health at Work), 2017, p. 21.

82 In 2012: https://arbetet.se/2012/10/19/saknas-100-000-skyddsombud/

83 Arbetet: https://arbetet.se/2018/01/15/svart-na-malet-om-300-arbetsmiljoinspektorer/

84 Chapter 6, Section 4 SWEAct.

85 WEA: https://www.av.se/halsa-och-sakerhet/sjukdomar-smitta-och-mikrobiologiska-risker/smittrisker-i-arbetsmiljon/coronaviruset/systematiskt-arbetsmiljoarbete-och-riskbedomning/

86 Chapter 6, Section 6 SWEAct.

87 Arbetsmiljöverket enheten för region nord, decision 2020-11-05, 2020/040441.

88 WEA: https://www.av.se/om-oss/press/jobbrelaterade-coronaanmalningar/begaran-om-atgarder/

89 Chapter 6, Section 7 SWEAct.

90 WEA: https://www.av.se/om-oss/press/jobbrelaterade-coronaanmalningar/skyddsombudsstopp/

91 Förvaltningsrätten i Stockholm, 2020-04-30, case 8036-20.

92 Förvaltningsrätten i Falun, 2020-04-03, case 1301-20.

93 Chapter 3, Section 4 SWEAct.

94 Prop. 1976/77:149 p. 395. AD 2001:10.

95 AD 2001:10.

96 AD 2001:10.

97 Following the IWGB case n.29 above; by virtue of the s.44 ERA.

98 Under s.100 ERA.

99 Rodgers v Leeds Laser Cutting Limited, Employment Tribunal, per Judge Anderson, 1 March 2021.

100 See Castano v London General Transport Services Ltd [2020] IRLR 417.

101 Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683.

102 Breach of Management of Health and Safety at Work Regulations 1999, Reg. 8 can lead to a fine of up to £20,000; deliberate or serious negligent conduct can lead to unlimited fines and/or imprisonment under the Corporate Manslaughter and Corporate Homicide Act 2007, ss1-2. See regarding the small numbers of prosecutions, A. Moretta et D. Whyte, op. cit., p. 9.

103 See Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, HL; and Barber v Somerset County Council [2004] IRLR 475 HL. Discussed in Smith and Wood’s Employment Law, 14th ed. (OUP, 2020), p.163.

104 Ibid., p. 176.

105 See the Enterprise and Regulatory Reform Act 2013, s.69.

106 Chapter 6, Section 6 SWEAct.

107 Chapters 39-41 the Swedish Social Insurance Code 2010 and collective agreement insurance «Trygghetsförskring vid arbetsskada».

108 Section 35 in «Trygghetsförskring vid arbetsskada».

109 IWGB case, op. cit.

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Peter Andersson et Tonia A. Novitz, « Risk assessment and Covid-19: systems at work (or not) in England and Sweden »Revue de droit comparé du travail et de la sécurité sociale, 4 | 2021, 66-79.

Référence électronique

Peter Andersson et Tonia A. Novitz, « Risk assessment and Covid-19: systems at work (or not) in England and Sweden »Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2022, consulté le 10 juin 2025. URL : http://journals.openedition.org/rdctss/2668 ; DOI : https://doi.org/10.4000/rdctss.2668

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Auteurs

Peter Andersson

Senior Lecturer, University of Gothenburg, Sweden.
Research topics : Work Environment Law, Occupational Health and Safety, Responsibility Issues Regarding Stress at Work.

Publications :
~ P. Andersson, Krav och resurser i balans: Analys av arbetsmiljörättens nya regel mot stress, Förvaltningsrättslig tidskrift, 2021.
~ P. Andersson, Lagom krav på arbetsmiljön. Om förelägganden och förbud och arbetsmiljöansvarets gränser, Stockholm, Edition Jure, 2019.

Tonia A. Novitz

Professor of Labour Law, University of Bristol, UK.
Research topics : Labour Law, Human Rights and Sustainabiility.

Publications :
~ T. A. Novitz, « Gig Work as a Manifestation of Short- Termism: Crafting a Sustainable Regulatory Agenda », Industrial Law Journal, vol. 50(4), 2021: https://doi.org/10.1093/indlaw/dwab027
~ T. A. Novitz and M. Pieraccini (eds), Legal Perspectives on Sustainability, Bristol, University of Bristol Press/University of Chicago Press, 2020.

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