Swine Flu and Employment Law
Experts anticipate that a swine flu pandemic will truly hit in the autumn. This will have significant implications on businesses and employers should now start making contingency plans.
Employers need to focus on the following three areas when preparing for pandemic flu:
- The duty to protect the health and safety of employees.
- Dealing with staff absence.
- The possible suspension of "normal" working practices and the impact that this may have on contracts of employment.
Where there is a recognised trade union or other employee representative body, such as a works council or information and consultation committee, this may need to be involved in the planning that is taking place in respect of pandemic flu.
Action points for employers
To deal with these human resources issues, employers should:
- Communicate with staff about the current health risks and ensure systems of communication with staff are reliable.
- Review hygiene practices and improve these, where necessary.
- Have contingency plans for staff absence, identifying key staff.
- Review relevant policies such as sickness, absence or dependant leave policies and consider how these might need to be modified.
- Consider putting in place arrangements for homeworking or travel bans, should this become necessary.
Health and safety
There are two health and safety aspects which an employer needs to address:
- Keeping employees informed about the health risks.
- Taking steps to ensure that there is good hygiene in the workplace and that working practices do not pose undue risks to employees.
The Government has prepared some basic advice to staff Introductory advice to staff on planning for pandemic influenza, Civil Contingencies Secretariat, Cabinet Office (http://www.cabinetoffice.gov.uk/media/132829/intro_staffadvice_flu_planning.pdf) which businesses may adapt and circulate to staff. Employers should keep abreast of Government advice on the matter, as it develops, and communicate this to staff. With this in mind, contact details of staff should be updated and emergency contact details of key staff should be circulated.
Employers need to review the systems of hygiene in the work place and aim for them to be good rather than adequate. Staff need to be encouraged to wash their hands with soap regularly and to carry tissues. Cleaning of hard surfaces, particularly phones and door handles, may have to be intensified. Guidance for individuals is contained in the Department of Health leaflet, Important information about swine flu while Pandemic Influenza, Health and Safety Executive (http://www.hse.gov.uk/biosafety/diseases/pandflu.htm) includes useful guidance on hygiene and risk control for workplace cleaning staff. The Department of Health, in conjunction with the Health Protection Agency, has also produced Guidance: Pandemic flu guidance for businesses: risk assessment in the occupational setting : Department of Health - Publications (http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_097137).
Employers should carry out a risk assessment, considering whether any factors make them particularly vulnerable to infection (such factors might include a high level of contact between people or a high incidence of travel). Consideration should be given to alternative ways of working, if there is an incidence of flu in the work place or else if a pandemic develops in the wider population. Homeworking may become necessary or travel bans may be imposed, depending on the circumstances.
The following steps are key to promoting the health and safety of employees:
- Disseminating up-to-date information about the health risks.
- Ensuring hygiene practices in the workplace are good.
- Asking employees to report to HR if they have flu-like symptoms or feel unwell and have travelled to Mexico or any other area considered high risk by the World Health Organisation.
- Asking any unwell employees to stay at home and consult their doctor.
- If there is a confirmed case of pandemic flu in the workplace or if a wider pandemic occurs, considering imposing homeworking or travel bans. Medical and Government advice should be followed in this regard.
Staff absence
Staff absence may be high for the following reasons:
- Employee sickness.
- Fear results in people choosing to stay at home.
- Sick children or relatives need looking after (or schools close).
Employers always face a conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence. However, in the event of a pandemic, concerns about whether someone is a malingerer should give way to the very real need to prevent the spread of the disease. Workplaces which have a culture of encouraging employees to "struggle in" despite not feeling well will need to change their approach; indeed not to do so would expose them to claims for breach of contract. It is also possible that employers could benefit from insisting that those who are unwell stay away from work for reasons other than limiting the spread of the virus within the work place. A well-advertised sickness policy of this kind might help employers reassure healthy, but worried, staff that work is relatively safe.
The hardest thing to manage is likely to be employee fear, particularly if this becomes widespread and there is public consensus that staying at home is safest. For the time being, employees should be required to attend work as normal, unless there is a particular risk posed in that workplace; this is in line with Government advice to carry on life as normal while being aware of the risks. However, this may change and employers should take their cue from Government.
Employers will need to understand what statutory and contractual rights employees have in connection with sickness and also dependant leave.
As indicated above, high levels of staff absence will affect business continuity. Employers should identify those staff with interchangeable skills who could stand in for one another in the event of illness as well as putting in place back-up from external contractors. This is particularly crucial in relation to key staff.
The possible suspension of normal working practices
Consideration will need to be given to suspending the normal practices around return to work, sick pay or dependant leave. For example, while a company sickness policy may require an employee to return to work as soon as they are feeling well enough, a person suffering from pandemic flu should not return to work until certified fit by a doctor.
Employers may end up having to be more generous about giving time off to employees caring for dependants than they would otherwise be. The statutory rights to dependant leave are quite limited and designed to allow a carer to put in place arrangements for the care of a dependant. If dependants become very seriously ill, or care arrangements are hard to come by as a result of a pandemic, it would be unrealistic for employers to expect people to take only their minimum entitlements. While, in the normal course of events, this might lead to disciplinary action, the importance of enforcing the rules may dwindle in comparison to the crisis.
Employer and employee may come into conflict with one another on issues such as length of leave and whether such leave should be paid or unpaid. Employer discretion may have to come into play and whenever discretion is exercised, an employer is vulnerable to allegations of discrimination or breach of trust and confidence.
If a pandemic develops, it is likely that some employees will be required to work from home or to refrain from work for a period. Unless such things are provided for in the employment contract, imposing these changes will constitute a unilateral variation, potentially giving rise to claims for constructive dismissal. There may be other measures which have to be taken which will impinge on the employee's strict contractual rights. While consultation with employees or a trade union (where one is recognised) is normally called for in the event of contractual variation, this may not be feasible at very short notice. The possibility of these changes having to be imposed in future is something that could be drawn to the attention of employees (and union representatives) now, thus avoiding scope for conflict.
Contact
Judith Ellery Head of Employment
Bethan Southcombe Solicitor
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