No one can have escaped the deluge of media coverage given to the swine flu outbreak and its wide ranging impact and potential effects. While this appears to be slowing at present, it is expected that the colder, wetter weather in the Autumn and Winter may lead to a significant increase in infection rates. What do you need to know as employers?
What should I be doing to prepare for a more serious outbreak?
It is important that employers put plans in place to ensure that their business is able to continue to run in the event of widespread employee absence. Employers should consider which roles are most essential for the business’s ability to continue to function, and consider what other steps could be taken to ensure continued operations. This may include making arrangements for remote access to the computer systems to allow employees to work at home etc. A detailed audit of the business, and the risks and responses, is required, together with in- depth analysis involving the worst case scenario.
What steps should be taken to reduce the risks to the business and its staff?
It is important to communicate with employees and ensure they are aware of the symptoms of swine flu and do not attend work while suffering symptoms, with the risk of passing the illness on to colleagues.
Employers may wish to restrict the use of face to face meetings, and encourage meeting by conference call or video conference.
Employees should be reminded of hygiene measures which can be taken to prevent the spread of infection, and the employer may wish to consider providing antiseptic hand cleaner etc. and arranging for more regular cleaning of premises. Ensuring that staff implement such measures is important, of course.
Employers should also remember that they are legally required to carry out a risk assessment in relation to threats to employee health and safety, and this is likely to include assessing the risk of swine flu infection. Consider whether there are areas of the business more susceptible and deal with such risks accordingly.
Can I simply dismiss employees who have swine flu?
This may be legitimate for employees with less than a year’s service (assuming the infection does not amount to a disability within the meaning of the Disability Discrimination Act and assuming the contract of employment is followed), but for employees with more than a year’s service, employers would still need to ensure that such a dismissal is fair. This means that the normal process of consultation, obtaining medical evidence etc. should be carried out, with dismissal a last resort. It seems unlikely that contracting swine flu would be a legitimate basis for dismissal by itself. Consider too the potential adverse publicity the business could suffer both internally with staff and externally, with the impact on the market, potential staff and customers/clients.
What if an employee insists on attending work despite having symptoms of swine flu?
Generally speaking it is reasonable for an employer to insist that an employee stays away from the workplace and works at home, or potentially to suspend an employee on full pay, pending clarification of the medical position. Employers should be cautious about doing so, with careful consideration being given to the full circumstances of each case. It is unlikely to be reasonable to suspend without pay, even if the contract of employment does not make any provision for paid sick leave (beyond statutory sick pay), unless there is clear evidence that the employee is not in fact fit for work. If an employee knowingly attends work while suffering from swine flu, contrary to instructions that employees must not attend, that could well be a disciplinary matter.
What about other employee absences?
Some employees may treat the swine flu outbreak as an excuse to take a few “sickies”. Employers may be suspicious that the employee does not in fact have swine flu. Nevertheless, employers should deal with any such suspicions in the normal way, perhaps seeking evidence that the employee had consulted their GP.
Other employees may seek to take time off to care for ill dependents. It should be noted that the statutory regime allows for unpaid leave in these circumstances, but only on a short term basis, in order to allow the employee to make other arrangements for the care of the dependent. However, given the risk that the employee may also be infected, employers may take a common sense approach and not insist that the employee returns swiftly to the office.
Other employees may indicate that they are not prepared to come to work because they are nervous about contracting swine flu. Assuming the employer has taken reasonable steps to ensure that health and safety is safeguarded, it would normally not be legitimate for employees to fail to attend work for this reason. Whether it would be legitimate for an employer to dismiss such an employee would depend on all of the circumstances of the case, including the extent of communication with the employees and the employer’s efforts to reassure the employee that all reasonable steps are being taken to safeguard health and safety. Payment of wages in such a situation is a different matter: no work, no pay...
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Douglas Strang