Legal briefing: spit and imagine the consequences

We are all familiar with the duty contained in the Health and Safety at Work Act that makes employers responsible for the health – both physical and mental – of their employees when at work.

In the current COVID-19 pandemic this duty has required a review of precautions and practices put in place to protect enforcement officers who may be visiting premises where there is a potent risk of COVID-19 transmission. Physical distancing, the use of technology and the wearing of PPE are required, all of which should help as long as they are properly implemented.

Much more difficult to protect is mental health. There is no doubt that COVID-19 is very frightening. To address the fear many employers have thought innovatively, putting in place such things as wobble rooms, online coffee catch-ups and one-to-one counselling for their staff. Counsellors report that the biggest concern for enforcement officers is of introducing infection to their own families, and that many have found ways to avoid doing so, such as living away from their families for extended periods to avoid accidental transmission.

A worrying new trend is what the police describe as ‘weaponising COVID-19’, when an individual claims to be infectious and spits at an officer. In recent weeks offenders have been convicted for spitting at police officers investigating a breach of COVID-19 regulations and a road rage incident, and at a shopkeeper attempting to detain an alleged shoplifter. The sentences ranged from four to 11 months imprisonment. Few would disagree that one individual spitting at another is disgusting – in law it is an assault and can be prosecuted as such. Where the spitter claims to be infected with COVID-19, the stakes are raised considerably.

We know that the virus is transmitted in saliva, so it is entirely reasonable that any enforcement officer who has been spat on by someone claiming to be infectious should be very concerned by the possible outcome.

At the beginning of the pandemic it would probably have been a long way from most people’s reasonable anticipation that their COVID-19 risk assessment would have to consider the impact of staff being spat on by individuals claiming to be infectious. Physical steps to be taken in such an event are relatively straightforward. Much more difficult is dealing with the mental health of the affected officer. Whether the spitter is COVID-19 positive or not, the fear that they might be will be very real and, until a test can be carried out to confirm one way or the other, that fear will be acute and debilitating. In such cases officers will need support in the short term until test results are known, and in the longer term too, as the fear of such an incident being repeated might make undertaking further enforcement work impossible.

Threatened infection, whether real or false, is happening – we have the evidence that shows it. Employers need to ensure that their COVID-19 risk assessments address both the physical and mental impacts of such
an incident, and that actions follow words.

Julie Barratt is an EHP, barrister, trainer (owner of JB Legal Training), author and president-elect of CIEH

This article is an edited version of one that appeared in the November 2020 issue of EHN (login required)