Employment Law

24/09/2011

Swine flu has reached pandemic proportions. This means that there are cases in a number of countries rather than that the incidence in the UK is high, although there is a concern that the number of cases could increase dramatically as the year progresses.

“Bosses should look to keep abreast of government thinking and follow its recommendations,” advises Fergal Dowling, partner and head of employment law at the Midlands’ offices of law firm Irwin Mitchell. 

Typical areas of concern will include:

• Safe means of working
• Absence from the workplace
  • Employees who are ill
  • Employees caring for dependents who are ill
  • Employees who are absent under false pretences
  • Employees who are sent home for their own wellbeing
• Staff /skills’ shortages

Employers must take all reasonable and proportionate steps to ensure the health and safety of their workers and advise employees of these steps.  The ability to demonstrate that they have done so could prove invaluable should an employee launch legal proceedings. 

"Turning to the likely areas of concern, the first is provision of a safe working environment," continues Fergal.
"This could include providing sufficient soap or gel for hand-washing and an effective means of disposal of paper towels and tissues.  It may also mean adjusting working hours, so that employees do not travel during rush hours where opportunities to contract the virus increase." 

Bosses might also feel inclined to draw up a schedule, so that the facility to travel outside of the rush hours is shared across all staff to avoid allegations of discrimination or unfair treatment.

The nature of some commercial activities may make remote working a sensible proposition, whereby certain employees work from home, thus reducing the number of staff in the workplace who may be exposed to swine flu. 

However, this may lead to issues such as the funding of equipment should an employee neither have a home PC nor access to the office network. Remote working is down to pragmatism, unless the government insists that, apart from essential, frontline staff, the public should stay at home.

Any time off for employees to care for dependents that have fallen ill would be taken as unpaid statutory leave under the 'Dependency Leave' provisions. Fergal adds: "Employers may like their workers to take time off to organise someone else to care for their children. However, this may prove challenging as the carers themselves might be at risk of contracting swine flu and so refuse the task. Bosses therefore should not be too surprised if the employees have to care for dependents themselves."

Current advice concerning employees who contract swine flu is that they should stay away from the workplace.  They would be entitled to Statutory Sick Pay plus any other remuneration in line with their contract of employment. 

This may seem straightforward, until one considers that doctors have advised people who think they have symptoms to keep away from surgeries and telephone the designated call centre or surgery.  Such ‘remote diagnosis’ leaves scope for abuse, as an employee may claim he or she has been diagnosed with swine flu while, in fact, being totally healthy. 

Recent research suggested that employees who contracted swine flu have been absent for an average of around four days. These employees would therefore have self-certificated, again leaving room for a small minority to falsely take time off. 

Where it proves necessary for employers to instruct fit employees to stay away from work in a bid to protect their health, it is likely to be because an employee has come into contact with someone who has swine flu outside of work or because a colleague has contracted the virus. 

Fergal explains:

"Where the employee is well and available for work but instructed to not come into the workplace it is known as a 'medical suspension'.  The employee is entitled to receive full pay until such time as he or she is recalled to the workplace.  Should the worker fall ill in the interim, Statutory Sick Pay applies from the date of diagnosis."

Once an employee is advised by the GP that he or she is well enough to return to work the employer may wish to conduct a 'back to work interview'.  This should include an assessment of whether the worker is able to pick up where he or she left off or if lighter duties are more appropriate. 

The issue of skill shortages should be considered as a matter of high priority. Employers ought to ascertain those skills which are essential to keep the business going in the event of a serious outbreak of swine flu and, where necessary, provide additional training to counter shortfalls. 

This is particularly critical given that the country has been in the grip of a recession so there is little likelihood of unnecessary duplication.

"I would advise employers to review their policies and procedures relating to sickness and absence and business continuity now,” concludes Fergal.  “That way they have a better chance of ensuring that both their workers and the business can remain fighting fit."