If health and safety regulations forbid very little by law, what are the legal duties for churches? How does this affect Government guidance in relation to COVID-19?
If someone completely unfamiliar with UK health and safety legislation were to ask me what is the most important thing they should know about it, I would answer that it affords a lot more room for discretion than you might expect. Surprisingly little is explicitly forbidden by law.
Instead, the Health and Safety at Work Act (HSWA) 1974 places a duty on employers and people in control of premises to manage health and safety risk to a certain standard and apply their own judgement in determining how to satisfy this standard.
For many this is most unsatisfactory! How much better to know definitively what you must and must not do, surely?
However, in many ways this is preferable, as it avoids blanket application of rules which may not be appropriate for everyone. It also puts the job of thinking about all the obscure and specific risks associated with an activity in the hands of the people most familiar with them - instead of asking government officials to imagine every possible scenario.
Section 2 of HSWA requires employers to ensure the health, safety and welfare at work of their employees so far as is reasonably practicable (SFAIRP).
Section 3 requires that employers ensure SFAIRP that their activities not expose non-employees to health and safety risk. It is worth noting that this duty applies to all activities carried out by an employer, not just those involving their employees - and that churches with no employees do not have the same legal duty (although you can still get sued under civil law - more on that later).
Finally, section 4 places a duty on controllers of non-domestic premises to not put people at risk coming onto the premises for their work (for example, a plumber paid to carry out a repair job in the church).
In the era of COVID-19, we have additional requirements which we have to abide by, and a lot of non-mandatory 'strong guidance'. It is helpful to view this guidance in the context of our existing obligations under HSWA - you may not have to follow every specific point, but you do have to ensure health and safety (including COVID exposure risk) SFAIRP. Following the guidance is, for most, how you will satisfy that requirement.
The courts have a well-established interpretation based on case law. Roughly speaking, you weigh up the potential safety benefit of a particular measure against the cost - not just in terms of money, but time, effort and other negative impacts.
If the costs are grossly disproportionate to the benefit, you don't have to make the trade-off, but otherwise it is expected that you should - even if the costs somewhat outweigh the benefit. You have to judge what is or isn't grossly disproportionate, and the only definitive test of whether your judgement was correct is in court, so make sure you are confident that you could justify your view in front of a judge. Failure to follow 'strong guidance' would severely undermine your argument - the expectation is that you either follow it or have a jolly good justification for not doing so!
Considering a COVID-specific example, the measure many churches will be considering is to continue to hold services remotely. While this may have financial costs, the biggest cost is probably our inability to meet physically. Obviously, this is hard to quantify, which is one of the reasons why the law permits discretion. If you cannot make meeting physically safe enough, is the cost of not being able to meet grossly disproportionate to the benefit of removing that exposure risk? Could you convince a court?
Failure to manage health and safety to the SFAIRP standard is a criminal act, usually with local government or the Health and Safety Executive prosecuting, and a serious liability risk for your trustees. It is important to note that even if no-one actually comes to harm you could still be in breach of HSWA - the criminal act is failure to manage risk, regardless of how fortunate you are with the outcome.
Normally prosecutions do not come about unless someone gets harmed simply because this is how breaches of the law come to the attention of the authorities. Right now, we have to assume that if we don't follow the guidance, someone might report us and the authorities could investigate and find grounds for a criminal charge - even if no-one has caught COVID (yet).
On a final note, if someone were to catch COVID-19 as a presumed result of your church's activities, they could sue for damages under civil law. To be successful they would need to show that you had a duty of care, that you failed to fulfil this duty of care, and that the harm thus incurred was reasonably foreseeable. Failure to follow the guidance could make this all rather easy to demonstrate.
I have already noted that churches with no employees are not subject to the duties in sections 2 and 3 of HSWA - but even a purely voluntary organisation can be sued.
I write this note in order to help churches understand the nature of their legal duties under the Health and Safety at Work Act and the new COVID-specific laws and guidance.
Besides the value of following these rules in keeping people safe from harm, something that fulfils the Golden Rule, we must also heed the words of Romans 13:1-7 and 1 Peter 2:11-17 about the importance of obeying earthly authorities.
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Immanuel (Manny) Kemp is a management consultant specialising in risk and safety, a volunteer trainer with the Association of Church Accountants and Treasurers (ACAT), and a deacon and treasurer at Eden Baptist Church in Cambridge.
