Should business prepare to tackle swine flu? |
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| Management | |
| Written by Craig Havard is a Partner at Moorcrofts LLP | |
| Monday, 03 August 2009 | |
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Are we seeing a new trend toward exaggerating health risks? Should business prepare to tackle swine flu? Probably not. We are told that despite warnings of 100,000 plus new cases a day by the end of August, swine flu is no more harmful than the more usual strains of flu. That may indeed be the case, but are we seeing a new trend toward exaggerating health risks? Consider CJD, SARS, bird flu – all serious, but of limited impact on the health of most people. Swine flu may be the latest in this trend, but is there anything employers should do to protect their businesses from this or other health scares?Employers owe a duty of care to their staff. This requires that they provide a safe system of work. In respect of global and UK health scares, most employers will be able to decide what steps are reasonable to satisfy this duty of care merely by keeping an eye on world and UK news. For example, Government advice to prevent the spread of swine flu includes encouraging basic hygiene – cover the mouth and nose when coughing, use and safely dispose of tissues, frequently wash hands, etc. On a more general note, employers should think about measures to minimise the disruption that could be caused to their businesses by such health issues. Flexible working practices are encouraged in the name of diversity; they may also have an unforeseen, positive impact on commerce. Take home working for example. This is a measure widely suggested as helping to equalise employment opportunities of women with men. It may also reduce sickness absence: reduced chance of infection from co-workers; and ability to carry on working, whilst caring for sick dependants. Bear in mind that employees have the right to a reasonable period of unpaid leave to care for dependants. Whilst the lack of obligation to pay may assist businesses, the impact of lost working days would still be felt. Other flexible working arrangements include flexible hours – with perhaps similar (although presumably reduced) benefits to home working. Flexible working might also serve as an additional protection for vulnerable staff, such as the pregnant or disabled. How about sick pay? What contractual provisions exist? Are these overly generous in today’s climate? Whilst contractual variation should be by agreement, until last year, who would have foreseen employees in their thousands, let alone unions, agreeing to pay cuts? Maybe now is the time to broach the subject. Consider proposals to limit or impose conditions on sick pay in certain circumstances. For example, excluding company sick pay where employees have unreasonably put themselves at risk – last minute holidays to high risk countries resulting in sickness absence on their return, or even quarantine (a period of quarantine was suggested by the World Heath Organisation during the SARS outbreak). What about other contractual provisions? The Government website, www.directgov.co.uk, suggests that those infected with swine flu should not visit their GP. Rather, their Flu Friend (i.e. carer) should collect any prescription. Employers may not want Flu Friends to attend work. Flexible working may be inappropriate. What then is the position if a Flu Friend does not wish to take or is not eligible to take unpaid time off for dependants, but the employer wants to protect its remaining staff? This question may be more pertinent if swine flu mutates into something more dangerous, or in the event of another, more serious, health issue. Whilst requiring Flu Friends (or others) to stay away from work on full pay would be an option, it is likely to be expensive. There may be difficult bonus, commission or piece work type issues as well. A close inspection of existing contractual provisions is required, but it is unlikely that the contract will adequately deal with such circumstances. Again, maybe now is the time to review employment contracts, with a view to seeking agreement to a more flexible approach to pay and benefits as well as work methodology. Employees are under a duty to work if fit and required to do so. If an employee refuses to attend work, citing health and safety as the reason (e.g. because a colleague is known or thought to be infected with swine flu), that employee is unlikely to be entitled to pay and may be subject to disciplinary action. However, consider all the circumstances. Has the employer taken reasonable measures to protect its staff? Is the employee more vulnerable than the norm? What is the current government guidance on good practice, quarantine, etc? There are no doubt many more issues of varying complexity to consider. Employers may choose to do nothing and let this latest scare fade away. But, why not consider the issues now, seek legal advice, then decide whether now is the time to be proactive? Craig Havard is a Partner at Moorcrofts LLP
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