The legal considerations of swine flu

Friday, 01 May 2009 00:00

With the first case of swine flu confirmed in Devon on Wednesday, Tozers LLP employment partner Stephen Jennings says local employers should think about the impact on their businesses: "While we all hope that the epidemic will not spread, employers should be prepared for the worst." Here are some of the key issues that ought to be considered if the epidemic spreads.

Health and Safety

The law, principally via the Health & Safety at Work Act 1974, places all employers under a duty to ensure, so far as is reasonably practical, the health, safety and welfare of their employees. Not only do you have a duty of care towards your employees but also towards anyone connected with your business which includes customers or clients, sub-contractors, suppliers or members of the public who may visit your premises.

Different standards of care may apply to different employees. Consider risk assessments for employees who may be more vulnerable or who may be more badly affected e.g. those recovering from illness and, if necessary, seek medical advice.

Sending employees home

It is well-known that flu spreads much more quickly in an enclosed environment such as a workplace and employees may be understandably reluctant to put themselves at risk by coming into work. There may even be an expectation that you will close your business and send employees home. Sending employees home is not as straightforward as it may sound: in some cases it may even be a breach of contract to do so, especially if employees need to be at work to earn commission or other benefits - not all employees may be equally keen to go home if it affects pay. You would need to be clear that there is a genuine risk to health before you send home any employee who would lose out financially as a result without their consent.

What if employees report for work but the employer decides that the business ought to be closed? The general rule is that an employee who comes to work and is ready and willing to work is entitled to be paid. While an employer may feel that they should not have to pay employees for time spent off work, it may be difficult to justify not doing so if the employer has sent the employee home. The employer may have a stronger case for non-payment if an employee chooses not come to work in the first place. This may of course be an opportunity for you to consider allowing employees to do work from home, take unpaid leave or even work from a different location.

Unfortunately there may be some individuals who try to exploit the situation. If an employee refuses to attend work due to the risk of infection it would be advisable to act in line with current medical and Government advice. In the absence of such advice to stay home or another good reason, this is potentially unauthorised absence which you should deal with under your normal procedures.

Time off for emergencies

With the sudden closure of Paignton Community College, some employers may find their employees having difficulties making child-care arrangements. All employees with dependants have the right to a reasonable amount of time off to deal with emergencies. This is likely to apply in a case such as this - however, although no clear limit is set, the legislation only envisages short periods of absence (usually no more than a day or so) which can be unpaid. Bear in mind the same right also covers other dependants, such as spouses etc, who may be taken ill suddenly and need assistance.

As well as the news, it is worth keeping an eye on the following websites for updates and official guidance:

Business Link www.businesslink.gov.uk

DBERR www.berr.gov.uk

Direct Gov http://www.direct.gov.uk/

If you would like specific advice on this or any other employment related topic please contact our employment team.