Swine flu – is the worst yet to come?


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Daily reports in the media suggest that swine flu is spreading. Health Secretary Andy Burnham has said that cases are doubling every week and that, if they continue to do so, there could be over 100,000 cases per day by the end of August. Whilst the majority of swine flu cases appear to be mild, British businesses nevertheless face major difficulties if large numbers of people have to take time off work. Indeed, the HR issues that employers are increasingly likely to face are those relating to the impact of large scale absence on business continuity, as opposed to concerns about containing the outbreak of swine flu in the workplace.

If the swine flu pandemic spreads, more employees will be infected by the swine flu virus, and consequently have to miss time off work sick (“primary” absence). In addition, employees who may be perfectly healthy will increasingly be put into a position where they have to take time off work (“secondary” absence) to care for others who are affected by swine flu, either directly, or indirectly, such as in the case of parents who are left stranded for childcare if schools are forced to close in an attempt to contain an outbreak.

Primary absence

Employees who catch swine flu are unlikely to be well enough to attend work, and employers will prefer that they remain away so as to reduce the risk of other employees becoming infected. However, some infected employees may be anxious to return to work before their recovery is complete, particularly where they have exhausted any contractual sick pay entitlement. Whilst employees sometimes come to work with a cold or common flu, the nature of swine flu, and the fact that it appears to affect a larger number of people more adversely than common flu does, means that employers should exercise particular caution before allowing staff who are suspected of having contracted swine flu to return to the workplace. Given the legal obligations that employers have to provide a safe place of work for their staff, it is submitted that an employer would be justified in insisting on requiring medical confirmation that an individual was fit to return to work without posing a risk to colleagues. Ultimately, an employee’s failure to obey reasonable instructions that prevent the spread of swine flu could justify disciplinary action and dismissal.

Equally, employers may want to insist that a member of staff submits to a medical examination in circumstances where it is thought that an individual may be malingering – an issue that may become more prevalent if the Government follows through on its proposal to extend the self-certification period for Statutory Sick Pay (and, by common extension, for contractual sick pay) to 14 days. The stated purposes of this change are to prevent infected employees feeling obliged to return to work when still unwell, and to alleviate pressure on GPs. However, it is easy to see how this new system might be abused, particularly in companies where there is generous sick pay provision. Ideally, employers should seek to introduce a provision into terms and conditions of employment pursuant to which staff may be compelled to submit to a medical examination, at the employer’s expense (since it appears that only private GPs will test for swine flu), and to consent to the disclosure of the results of that examination to the employer.

Finally, there may be some employees who refuse to come into work because they are afraid of being infected. An employer could be entitled to discipline, and ultimately dismiss, an employee who refused to attend work without good reason. It is true that s.100(1)(d) of the Employment Rights Act 1996 (“ERA”) provides that an employee will automatically unfairly dismissed if the reason for dismissal was that the employee reasonably believed that he or she was in serious and imminent danger and therefore left, proposed to leave or (while the danger persisted) refused to return to his or her place of work. However, the protection afforded by s.100(1)(d) relies on the employee’s belief in serious and imminent danger being reasonable. In the absence of evidence of a specific and foreseeable threat in a particular workplace (which may be mitigated against by employers following government advice as to how to deal with swine flu), this protection is unlikely to be available to an employee.

Secondary absence

As well as the employees who themselves fall sick, employers will need to take account of employees taking time off to care for sick dependants. Under s.57A ERA, employees have the right to take unpaid time off work in certain circumstances, to take care of, or make arrangements in respect of a “dependant” (defined so as to include a spouse, civil partner, child or parent) of theirs. In order for this right to apply, the amount of time taken off must be “reasonable” and “necessary”. The s.57A right also applies where an employee needs to take time off work because of the unexpected disruption or termination of arrangements for the care of a dependant – as would be the case were schools and nurseries to suddenly close. Case law states that, in deciding what constitutes “necessary” time off, the circumstances of the individual employee should always be taken into account, whilst any disruption or inconvenience caused to an employer should be considered irrelevant. It follows that an employer would not be able to justify refusing time off under S.57A solely on the basis of severe staff shortage.

An employee who has unreasonably been refused permission to take time off in accordance with s.57A may complain to an employment tribunal and, if successful, be awarded “just and equitable” compensation. Furthermore, if an employee is dismissed for a reason connected with the fact that the employee took or sought to take time off pursuant to s.57A, that dismissal will be automatically unfair.

Strategies for coping with high levels of employee absenteeism

Some of the options open to an employer faced with a reduced workforce in such circumstances might include:Homeworking and flexible working

Clearly, limiting face-to-face contact between employees may reduce the risk of swine flu spreading in the workplace, and may enable employers to utilize staff who are able to perform some of their functions remotely, even if they are unable to physically attend work. However, flexible working arrangements will not suit all businesses, and even for those that can accommodate it, a host of challenging issues (e.g. ensuring compliance with relevant legislation on health and safety and working time, safeguarding business confidentiality and complying with data protection requirements in the home environment) will arise;Redeploying staff to jobs that they would not normally do

In the absence of a contractual right to vary an employee’s duties, a change in job or role unilaterally imposed by an employer may entitle an employee to resign and seek damages for breach of contract and unfair constructive dismissal. Where an employee refuses to agree to a change, an employer may terminate the old contract with notice and offer the employee new terms and conditions. In the event of the pandemic giving rise to a long-term and/or a significant reduction in the workforce, it is likely that an employer will be able to show that such a dismissal was reasonable. Indeed, tribunals have recognized that, in times of emergency, employers may have to ask employees to do work which they would not normally do. However, increased staff absenteeism is likely to result in other colleagues taking on extra work. Employers should monitor this, not only so as to ensure compliance with the Working Time Regulations 1998, but also because overburdened employees are unlikely to work efficiently. Further, such employees may be at risk of work-related stress, for which an employer can be held liable, or make mistakes which, again, may expose an employer to third party liabilities.

Recruiting temporary staff

Although hiring and training temporary staff will necessarily involve additional costs, this might be an attractive option where the staff shortages are likely to be only short term, and homeworking arrangements or redeployment of existing staff are not feasible.

Conclusion

As swine flu spreads, it is not easy to see how businesses will be able to get the balance right between giving sensible advice to staff to stay away from the office, and protecting themselves from severe disruption. A business’ ability to operate flexibly in order to cope with the unique challenges posed by the swine flu pandemic will be dependant on the “buy-in” of its staff, so employers are encouraged to maintain a frequent and open dialogue with their employees, and to seek their consent to any changes that are proposed. Employers will also need to continually assess the risk of the impact of swine flu on their businesses, and to consult Government websites (www.hpa.org.uk, www.hse.gov.uk ) for regular swine flu updates.

This article first appeared on Workplace Law Network – www.workplacelaw.net

For further information, please contact Taj Rehal (trehal@fladgate.com) or Michael McCartney (mmccartney@fladgate.com).

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