The Covid-19 pandemic has prompted landlords and tenants to look at leases to determine whether there is an obligation to make workplaces ‘corona-safe’ and, if so, who would be required to pay for any adjustments to buildings or services.
Modern leases usually impose on tenants the obligation to comply with relevant legislation, including health and safety regulations. If the tenant has employees, customers or clients visiting the premises, it would probably have to comply anyway as an employer or occupier. If the tenant has to make adjustments, it may simply need to communicate with the landlord to obtain consent. However, the tenant may have to bear the costs.
The landlord, while not the occupier of the premises, may have duties imposed on it, either as employer of building or maintenance staff or as ‘occupier’ of common parts that others pass through. If the landlord has to make adjustments, there may be service charge clauses in the lease that enable it to pass on some or all costs to the tenant.
Duty-holders of all types are required to report certain Covid-19-related incidents to the Health and Safety Executive (HSE) including: unintended incidents at work that led to possible or actual exposure to the virus; an employee who is diagnosed with Covid-19 when there is reasonable evidence that it was caused by exposure at work; or a workplace fatality as a result of exposure to the virus at work.
Having Covid-19 symptoms and being at work is not enough – there needs to be a medical diagnosis and a link between the contraction of the disease and activity at work, which requires analysis of all the measures in place at the time.
It is hoped the HSE will not seek simply to punish duty-holders. Prosecution is more likely if an organisation has failed to consider the risks as employees return to work; has failed to implement adequate control measures to address risks; or not followed appropriate guidance to keep employees and other visitors safe, such as social distancing and personal protective equipment – all reasonable practicable steps.
Kizzy Augustin is a partner and health and safety solicitor at Russell-Cooke