Sep 24 2009: SWINE FLU – PREPARING FOR A PANDEMIC
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Cases of swine flu are on the increase and although most cases are mild, there have been a number of related deaths in the UK. As we head towards Autumn, it is likely that the number of cases will increase. Swine flu updates are published weekly by the Health Protection Agency at http://www.hpa.gov.uk.
It is likely that over the coming months, a significant percentage of the workforce will contract swine flu. This could cause major disruption to businesses. If you haven’t already done so, you should start to prepare and plan for this.
Business planning
At its height, the flu pandemic could see a large proportion of the workforce off sick.
It is also possible that healthy people might be told to stay at home, or that certain businesses, schools, nurseries etc might be ordered to close, to limit the spread of infection.
Even where businesses are not badly hit, their suppliers or customers might be, which may have knock-on effects on its own operations.
Employers who do not plan for this are leaving themselves in a vulnerable position.
The main issues for employers to consider are:
• Coping with high levels of employee absence;
• Reducing the risk of swine flu spreading within the organisation;
• Coping when a major supplier or customer is affected;
Business continuity plans should highlight key business functions and set out the minimum number of employees required to carry out those functions. Key staff should be identified. It may be necessary to consider providing training to certain employees to ensure that these key functions can be administered.
Staff should be informed in advance of any continuity plans so that they are prepared for changes in their work practices, if necessary.
If you lose business as a result of the pandemic, you may be forced to make temporary lay-offs or redundancies. Please note that lay-off is a particularly complex area of employment law and you should not make lay-offs unless you have a contractual right to. Please speak to us before making lay-offs or redundancies, as there are very strict procedural requirements for each, and if you get it wrong you can lay yourself open to expensive claims for unfair dismissal or constructive dismissal.
Employee Protection
Employers have a general duty to provide a safe place and system of working for their employees. They also have a statutory duty to ensure the health safety and welfare of employees (section 2 Health and Safety at Work etc Act 1974), which requires that the working environment is – so far as is reasonably practicable – safe and free of risks to health.
During a pandemic, to ensure compliance with these duties, you may need to look at putting specific policies in place to prevent the spread of illness amongst employees to set out what will happen in the event of significant absence. Where there is a recognised trade union or other employee representative body you should, where possible, include them in the planning process.
Examples of measures to consider are:
• Making sure that employees are informed of the symptoms of swine flu and ensuring that it is clear that any staff with symptoms stay at home;
• Keeping employees informed of current Government guidance;
• Carrying out a risk assessment to identify any factors which make you particularly susceptible to infection;
• Putting strict personal hygiene procedures into place, e.g. providing anti-bacterial hand gel dispensers in the workplace and making sure that they are adhered to;
• Making changes to working practices – e.g. allowing employees to work from home, avoiding face to face meetings;
• Avoiding business travel to high risk areas – e.g. Mexico; and
• Whether you have any employees who are at particular risk of infection and how best to deal with them.
• Youshould also consider their obligations to others, e.g. contractors, customers and clients. It is likely that the general and statutory duties in terms of health and safety will apply to contractors if they have some control over their systems of work. If you provide services to vulnerable clients (e.g. those who work with children, pregnant women, the elderly or disabled) should take particular care and carry out appropriate risk assessments.
Where you have implemented such practices, you should make it clear to employees that failure to comply may result in disciplinary action or even dismissal. You may have to consider this, for example, where an employee refuses to stay at home when symptomatic, where an employee refuses to come into work for fear of infection, where you have evidence to show that sickness absence is not genuine, or where employees do not comply with hygiene rules.
Please remember that you must comply with the ACAS Code of Practice when disciplining or dismissing employees. It is highly recommended that you speak with us before taking any disciplinary action against employees.
Vulnerable Employees
Pregnant Women
There is a heightened risk of complications for pregnant women who contract swine flu. Employers have a general duty to carry out risk assessments for pregnant women. However, there are no specific obligations relating to swine flu as yet, although this may change as we head into Autumn.
If you have any pregnant employees and are concerned that their health is at risk from swine flu, you should contact us for further advice.
Underlying Medical Conditions
Most swine flu related deaths in the UK have involved people with underlying medical conditions, which may or may not constitute a disability.
Under the disability discrimination legislation, employers have a duty to make reasonable adjustments to working practices and premises for disabled employees. It may be necessary for employers to consider changing practices, for example, by allowing disabled people to work from home temporarily, in order to comply with this obligation.
Employers would be well advised to consider these types of adjustments even where the medical condition does not constitute a disability.
Remember, HIV is a recognised disability, sufferers will be particularly vulnerable, and the potential effects serious.
You may decide to collect information about individuals’ health to ascertain whether they have any underlying conditions. If so, remember that this will constitute the processing of sensitive personal data under the Data Protection Act 1998, and you must ensure that you comply with your obligations in processing it.
Time off to Care for Dependants
Employees have a statutory right to take ‘reasonable’ time off (unpaid) to care for ‘dependants’ (i.e. a spouse, civil partner, child, parent or other person who lives at the same address save for their employee, tenant or lodger). This includes where there is unexpected disruption to the arrangements for a dependant’s care.
As this is a statutory right, if time off is refused or the employee is dismissed for a reason connected to taking / requesting to take time off, the employee can bring a claim in the employment tribunal.
The right to time off is only to ‘reasonable’ time to deal with the immediate crisis. What is ‘reasonable’ is a difficult question under normal circumstances, so in these circumstances where care arrangements may be hard to come by, employer’s may have to allow more time than they might ordinarily allow.
Pay
Your obligations in terms of sick pay should be set out in the employee’s contract of employment. The statutory right to time off for dependants is unpaid, although your employee/s may have a contractual right to be paid for this.
You may decide to use your discretion and allow payment in excess of contractual / statutory entitlements. If you do, it is important that you use discretion in as consistent a way as possible to avoid claims for discrimination.
Useful Websites
For more information and guidance relating to business planning, please see the following:
www.businesslink.gov.uk
www.cabinetoffice.gov.uk
www.hse.gov.uk
www.dh.gov.uk
