13 August 2009
Swine Flu- Practical advice for employers on how to deal with the pandemic

At present the swine flu epidemic (H1N1) is at the grip of uncertainty. The World Health Organisation (WHO) considers the overall severity of the pandemic to be at phase 6, that is moderate. The WHO have also reported that the number of human cases is still increasing substantially in many countries.

In the event of a flu pandemic, businesses will have a key role to play in reducing the risk to employees’ health and safety as far as possible, in conjunction with maintaining their business operations. In all likelihood employers will find themselves in a situation where they have much higher than normal staff absences which they will need to cope with. As a result of this employers will inevitably face a conflict between having to keep genuinely sick employees away from the work place and the need to prevent unauthorised absences. This will be a balancing act but employers should consider giving way to the very real need to prevent the spread of the disease.

Employers should be aware, or obtain advice, on what statutory and contractual rights employees have with regards to sickness absence and dependent leave to ensure that these are complied with.

It will be essential for employers to consider their duty to protect the health and safety of employees. This includes ensuring employees are kept informed about the current health risks associated with the H1N1 virus. Therefore, employers should ensure systems of communication with staff are reliable.

There is a National Pandemic Flu Service (England only) available at 0800 1513 100. This service is to provide diagnosis and advice as well as access to medication. Employers should be informed of this service.

It is also advisable for employers to take steps to ensure that there is good hygiene in the workplace. This includes reviewing hygiene practices to ensure that these are good, rather simply adequate, and where required improve these accordingly.

Some employers may want to consider antiseptic hand gel dispensers for each member of staff or in key locations, such as the kitchen and/or reception areas.

Staff should be encouraged to wash their hands with warm water and soap regularly and to carry tissues.

Office space surfaces may require more thorough cleaning to avoid the risk of infections. This includes paying particular attention to phones and door handles.

Employers should be aware that they may face personal injury claims if they fail to take appropriate measures to protect their staff from swine flu. By taking any necessary measures employers may also promote confidence amongst their staff as well as minimise staff absence.
Some usual working practices may need to be suspended or modified and employers may also want to consider the implications this may have on contracts of employment.

Employers may need to consider modifying their normal working practices, specifically with regard to returning to work, dependent leave and sick pay.
This may include reviewing relevant policies such as absence and sickness and to consider how these may need to be changed to allow for the exceptional circumstances.

For example, a sickness policy may state that an employee must return to work as soon as they are feeling well enough. However, where a person has suffered from pandemic flu they should not return to work until such time as they have received medical advice to effect that they are unlikely to be contagious.

Any deviation from ordinary practices to allow for preventative measures so as to avoid the further spreading of the pandemic may lead to conflict between businesses and their employees.

Where normal practices have been deviated from and employers have exercised their discretion to allow for preventative measures of further spreading, employers may be somewhat more exposed to allegations of discrimination or breach of trust and confidence.

In the event of a pandemic, employees may be required to work from home. Unless this is provided for in the employee’s contract of employment, imposing this type of change could constitute a unilateral variation of contract. This could potentially give rise to a claim for constructive dismissal.

For further information on this, or any other employment law issue, please contact a member of the Empoyment Team on 01273 775533 or email employment@mayowynnebaxter.co.uk

DISCLAIMER
This article is written as a general guide only and is not intended to provide legal or medical advice. Mayo Wynne Baxter would encourage all businesses to obtain independent advice on their specific circumstances.