Posted: 01/06/2020
Mid-March to early April 2020 saw postponement and then cancellation of almost all elite sport in the United Kingdom. Nonetheless, in football, Premier League clubs voted unanimously to return to small-group training from 19 May 2020 and to contact training around a week later with it now being expected that the Premier League will resume from 17 June 2020.
On 25 May 2020, the Government issued updated guidance to provide elite sports organisations with a set of recommended minimum standards (known as the ‘Elite sport return to training guidance: stage one’ ) for a return to training. Stage two will permit ‘social clustering’ and much closer contact, including equipment sharing and tackling in contact sport.
The guidance does not replace the existing health and safety legislation, which will continue to apply where and how it did before the emergence of Covid-19. This article will discuss some of the issues that may arise for elite athletes and those supporting their return to training.
Although Covid-19 (and the laws introduced to combat its spread) is new, work-related health and safety legislation is not. The Health and Safety at Work Act 1974 (HSWA) is the principal legislation in England and Wales governing health and safety in an employment context. The HSWA is supported by six main pieces of secondary legislation (often referred to as the ‘six pack’) including the Management of Health and Safety at Work Regulations 1999 (MHSWR).
The HSWA requires that employers take reasonable steps to ensure the health and safety of their employees and others affected by their actions in the workplace, as well as minimising all possible risks to both groups. This statutory duty is mirrored by a contractual duty of care owed to employees by their employer under their contracts of employment to provide a reasonably safe place of work.
The primary tool available to an employer in complying with this duty is the risk assessment. A risk assessment aims to identify risks as well as the preventive or protective measures that can be taken to control them. Employers are required to undertake such risk assessments under the MHSWR, and the new risks presented by the emergence of Covid-19 require careful and detailed assessment followed by subsequent implementation of control measures before a return to work and training can be contemplated. Each employer must put control measures in place based on its own assessments of the particular risks in their organisation.
Should employers or those facilitating a return to elite sport fail in their duty of care to athletes and, as a result, the athletes contract Covid-19, claims from athletes are likely to follow. Leaving aside the possible reputational risk, the potential claims could be significant where an athlete’s ability to perform at a high level and earn salary/endorsements commensurate with such performance is impacted.
If employers fall foul of the duties imposed under the HSWA, criminal sanctions, including fines and imprisonment, can also be imposed. Perhaps most alarmingly, if the way in which an incorporated sports club manages, organises or carries out its activities causes a person's death then this can, under certain circumstances, lead to a conviction for corporate manslaughter. The sentence range for a corporate manslaughter conviction is a fine of between £180,000 and £20 million. Directors and senior managers may also face individual liability if found at trial to be guilty of the offence of gross negligence manslaughter, which could result in imprisonment.
At the time of writing, a number of football players have refused to return to training citing concerns over their health and safety, and there has been speculation that others may follow suit. A senior official at a Premier League club has said that “players should not receive their wages if they refuse to return to training”, but has also commented that they were “not sure what the situation [is] under their contracts”.
All contracts of employment contain an implied duty of service whereby the employee must be ready and willing to work if able to do so. Further, EPL and EFL football contracts are all in the EPL Form 20 standard form which, at clause 3.1.1.3, requires players to “attend at any reasonable place for the purposes of and to participate in training and match preparation”.
If a workplace is in some material way unsafe (for example, there is inadequate social distancing or cleaning), the place of work may not be a “reasonable place” for the purposes of clause 3.1.1.3. This may give players grounds to refuse to attend training at that place, but not the right to refuse to train at all due to the requirement under clause 3.1.3 to “maintain a high standard of physical fitness at all times”.
Athletes and staff, as employees, are also afforded protection by section 44 and section 100 of the Employment Rights Act 1996 (ERA). Under those provisions, employees have the right to not be subjected to any detriment or dismissal by their employer if, in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they refused to return to their place of work or any dangerous part of their place of work.
These provisions could allow athletes to refuse to train if they reasonably believe that doing so would put them in serious and imminent danger of contracting Covid-19. This might arise, for example, if any athletes or staff at the training ground have or have recently had Covid-19. However, given the extensive preparations that employers are taking to deep clean, maintain hygiene standards and arrange for workplace social distancing, a refusal to train based on a non-specific Covid-19 concern would likely not engage the protection under ERA, sections 44 and 100.
That said, if a player is docked salary or is dismissed for refusing to train due to their reasonable belief that doing so would put them in serious and imminent danger of contracting Covid-19, a claim for detriment or unfair dismissal could follow. This could allow for an award of compensation and, in a dismissal case, possibly for an order of reinstatement or reengagement. However, these remedies will not be made immediately, and only after a determination of the facts - which could take months. Athletes are therefore in a difficult situation concerning what to do in the present moment and whether they should (and can) refuse to return. If athletes have specific concerns about their return to work and their personal circumstances, they should raise these with their employer at an early stage, in the form of a grievance.
Employers should discuss with the returning employees the risks of returning to work, the mitigations being put in place and each individual’s concerns before deciding if it is safe and appropriate for the athlete or staff member to return. A return to work policy would also be helpful. Employees should also be provided with a copy of the risk assessment that has been undertaken under the MHSWR. Disciplinary action for refusal to participate should be considered only as a last resort and after taking legal advice on the situation.
Companies also owe duties to those who are not employees, whether they are agency workers, visitors or others. Occupiers of land should be mindful of their obligations under the Occupiers Liability Act 1957 (OLA) which places a common duty to take such care as is reasonable to see that a visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there. Employers also owe a common law duty of care in performing their actions (or failures to act) to those whom it is reasonably foreseeable could be affected by those actions or inactions.
In addition to the existing measures in place to ensure the safety of those attending matches, employers will have to ensure that on a match day all others who are on their premises (whether that be opposition players, media teams, contractors and/or visitors) will be reasonably safe in using them for the purposes for which they are invited or permitted.
In the first instance, matches will be played and events will take place behind closed doors with no crowds present given the practical impossibility in maintaining social distancing in a crowd. Measures to keep visitors reasonably safe on such match days are likely to include a restriction on the number of players, staff, media representatives, officials, and other necessary individuals and a requirement that social distancing is maintained where possible. Those hosting games should also have in place risk assessments for the match day process alongside those for the return to training.
The guidance is a set of recommended minimum standards for the first stage of the return to training for elite athletes to help ensure a safe return whilst adhering to social distancing. The guidance sets a minimum practice for ‘elite athletes’ which is quite widely defined and includes all those who derive a living from competing in a sport.
The guidance recommends that each elite sports organisation should name an existing member of staff as a Covid-19 officer who will be responsible for oversight of the related risk assessments and ensuring necessary mitigations are in place. Each organisation should also have a Covid-19 medical officer who is familiar with the emerging evidence related to post-Covid-19 pathology. Their role is to ensure any suspected or confirmed cases are dealt with in accordance with protocols and current Government guidance, and also to have oversight of the return to training of all athletes. The Covid-19 officer and medical officer should work together where possible.
As outlined above, risk assessments and risk mitigation plans must be created for each venue. The guidance sets out what should be seen as minimum requirements:
Each organisation or venue should have their own policies to comply with the non-mandatory guidance. If the guidance is not followed and it is discovered that there are shortcomings in a club’s process of returning to training, this could potentially hinder the return of live sport and lead to risks for organisations, athletes and those organising training.
Employers must prepare well-thought-out risk assessments for every stage of the return to sport and ensure there is the time and the resource to put control measures in place. Risk assessments cannot always eliminate risk but, when prepared properly, they help employers keep their employees reasonably safe.
Employers should consult with athletes, staff and their governing bodies to consider how to comply with the guidance and legal requirements whilst retaining the integrity of their competition. Concerns raised by employees should be taken seriously and the responses given should be carefully documented.
Athletes should work closely with their employers and those organising a return to training to ensure that they are comfortable with the steps taken to mitigate the risks of a return to sport. If an athlete has a particular concern (such as an underlying health condition or a particularly vulnerable family member), then it should be brought to the attention of the employer as soon as possible.
Employers should also be wary of rushing athletes back into competitive elite sport the moment permission is given, as there may be a greater risk of injuries after such a prolonged period of suspension. Concerns over a pre-emptive return should be taken seriously given over a dozen injuries were suffered in the first week of the return of the Bundesliga.
There are numerous health and safety hurdles for employers to overcome upon resuming training and competitive sport, and the emerging scientific evidence should constantly be monitored. Employers should have regard to the most up to date and accurate advice, and wherever possible, consult with athletes and staff in making decisions on the return of elite sport.
With appropriate control measures, careful compliance with the guidance and developing best practice, a return to elite sport is possible. At least, that is the hope of all of the stakeholders in elite sport - including the fans, who have had about enough of the Belarusian Premier League.
This article has been co-written with trainee solicitor Joshua Hoare.
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