Can an Employee Consent to Corona?

A recent headline on the BBC sports pages reported that  Red Bull’s Helmut Marko told his team’s drivers  to become infected with the coronavirus while the season was in hiatus. The website recorded that “The 76-year-old said he had the idea to bring his Formula 1 drivers and juniors together in a camp, which “would be the ideal time for the infection to come…….. They are all strong young men in good health. That way they would be prepared whenever the action starts “

This idea was not pursued, the rest of the Red Bull management being, perhaps understandably, against the idea.

Whilst this Trumpian episode highlights that thinking out of the box is not always a great idea, it will raise some inevitable questions as to what employers can ask of their employees during the Corona crisis and what risks can they be exposed to.

An employer has a duty of care for the health and safety of their workers. Any employer requiring an employee to knowingly expose themselves to the virus in order to catch it would be in breach of that duty. Requiring employees to breach government advice as to social distancing measures (if a worker has indeed got to come into work) in the running of a normal, non essential business, would in most situations arguably constitute a breach of this duty.

However the more interesting question is whether an employer can request an employee to waive their health and safety in breach of the government recommendations?

If an employee consented to such a request, could an employer rely on the principle of volenti in relation to any future claim that may be brought should the virus be caught and harm suffered (and assuming causation can be established)?

The likely answer is no.  The Courts have traditionally been adverse in finding any implied consent when an employee undertakes a risk that is ultimately for the benefit of his employer, even if (as will inevitably be the case) there will be some benefit for the employee , such as being paid or ensuring that his or her employment can continue. In such situation the Courts have been very reluctant to accept that ‘true’ consent can be given: people in fear for their jobs will do what is asked of them.

What about express consent?  Much will depend upon the employment relationship and the nature of the employment. If consent can ever be ‘freely’ given in an employment relationship, it is more likely to be given by those in the employment food chain who are in a position to legitimately question (or indeed help formulate) an employer’s policies i.e senior management.

Most employees are not in such a position and it would be a foolhardy employer to rely upon the voluntary agreement of employees to act contrary to government recommendation.

Put bluntly, a Formula 1 driver may freely consent to risking his life driving round a track at 200MPH, but not to deliberately catching the Corona virus at the request of their employer.

[This article is the author’s own opinion and does not constitute legal or professional advice. The law may have changed since this page was first published.]

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Author: Huw Davies Farrars (chambers@farrarsbuilding.co.uk)

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