swine flu

Can an employee be excluded from the workplace with or without a confirmed diagnosis of swine flu?

The first concern of every business should be for the health and safety of their employees and customers. There are two health and safety aspects which an employer needs to address within the workplace namely:

• Keeping employees informed about the health risks; and
• taking steps to ensure that there is good hygiene in the workplace and that working practices do not impose undue risks to employees.

Swine flu is thought to spread in the same way that seasonal flu spreads through coughing, sneezing or even coming into contact with someone who has or has recently had influenza. The World Health Organisation also recognises that Swine Flu appears to be highly contagious and as such their advice is to apply pandemic infection control procedures. It is deemed best practice to remain vigilant and ask employees to stay at home, report to HR and to consult their doctor if they report they are feeling unwell, have flu like symptoms or have travelled to Mexico or any other area considered high risk by the World Health Organisation.

If there is a confirmed diagnosis of swine flu in the workplace employers could also consider imposing home working or travel bans on employees until such time as they have been appropriately assessed medically. Therefore if a pandemic develops, it is likely that some employees will be required to work from home or to refrain from work for a period. However, unless such things are provided for in the employment contract, imposing these changes could constitute a unilateral variation, potentially giving rise to claims of constructive dismissal.

There are additional powers provided, albeit generally to local authorities, under The Public Health (Control of Disease) Act 1984 (Public Health Act). In essence what this act enables authorities to do is:

• Seek orders that a person be medically examined or be removed to, or detained in, hospital; and
• request that a person does not attend work.

However the above is all subject to the employer complying with relevant laws in relation to discrimination in the workplace on the basis of disability, sex, marital status, race, ethnic or national origin, religion or belief and sexual orientation.

In conclusion, employers have a duty to provide a safe place of work for all its employees. Consequently, an employer would be justified in the circumstances to ask such an employee to work from home for a period of time and to seek medical advice following a return from Mexico. Once the employee is given the medical all clear, they should then be allowed to return to work.

How could swine flu impact on wages?

In the event an employee is sent home, the issue of money is likely to be a big concern for both the employer and the employee. The employer will want to know whether they have a duty to pay the employee and the employee will want to know if they will be paid. This will depend on the circumstances of each individual case, but the first point of reference will always be the employee's contract of employment.

As a result of the recent press regarding Swine Flu, companies are being advised to put a contingency plan in place in case of a pandemic. This document, a health and safety internal procedure or handbook may state the company's position about the situation including whether wages will be paid and how much the employer will pay.

If an employee is suspected of swine flu, or has been in contact with someone who has been diagnosed with swine flu, it may be wise to send the employee home. The employer has an obligation to provide a duty of care to its workforce as a whole. However, the employer also has a duty to provide work, therefore, if the employee is ready and willing to work but sent home as a precaution, the employer should consider keeping the employee on full pay and isolated from other employees. This is until they are assessed by a GP and cleared of the swine flu. By taking such steps the employer would achieve a balance of complying with both duties.

If an employee has been diagnosed with swine flu, it is more than likely the side effects will place the employee in a position that they are unable to work. The employee will then be entitled to Statutory Sick Pay or sick pay in accordance with the company policy. Even if the employee is able to work, they should be told to stay at home until a GP has declared that they are no longer a risk to other employees. By doing this, the employer has taken steps to ensure its employees are protected. In the situation of a confirmed diagnosis, the fact that swine flu has the potential to cause fatalities, the employer's duty of care and its health and safety obligation is paramount.

As in most employment situations, this is the basic position. However, each case would be assessed on its own merits.

What duty does an employee have to his employer?

Contrary to what employees may believe, if they fail to protect themselves by reducing or minimizing the risk of catching or spreading swine flu, they may be in breach of the implied duties imposed on them under their contract of employment.

Even though employees may have a large pile of work on their desks, they need to seriously think about the consequences of going into work whilst they feel unwell. A common sense approach needs to be adopted and if they feel unwell, they should stay at home until they feel better in order to avoid the risk of spreading the flu to other members of staff, putting their employer at risk of having a very ill workforce.

Employees need to balance the duty they have to act in the best interests of their employer, against the duty they have to serve their employer. Some employees may be tempted to jump onto the potential pandemic bandwagon in order to use the excuse and take time off from work. However, doing this could leave them in breach of their implied duty.

So what actions can employees take in order to comply with all implied duties under the contract?

• If you feel ill, stay at home until you feel better - regardless of the urgent work that may be on your desk.
• Keep your employer updated in respect of your illness.
• Prevent the spread to others - keep your distance from colleagues and other people, especially children.
• Do everything you can to ensure a speedy recovery such as, taking regular medicines to relieve the symptoms such as paracetamol and asprin, drinking plenty of fluids, maintaining a good level of basic hygiene.

What duty does an employer have to the wider workforce to protect them from infection?

There are a number of measures that employers will be considering to stop the spread of the illness to its work force. One such recommendation has been to conduct a risk assessment, whereby the employer considers a range of social, environmental and organisational measures that could be taken. Employers would be wise to make sure that healthy workers reduce or avoid contact with individuals (whether colleagues or clients) who may be showing symptoms of the illness. Social distancing is considered a priority, for example by:

• Creating an atmosphere where it is acceptable to take time off sick, and not to return to work until symptoms have completely gone; or
• encouraging workers to work from home; or
• promoting communication through conference calls, or other telecommunication instead of face to face meetings.

Employers should also raise awareness about the need for workers to take responsibility for their own health, by promoting individual respiratory hygiene, and ensuring that adequate access to hand washing facilities exists.

Can someone stay away to avoid the risk of infection?

The million-dollar question for employers is whether there is a genuine need for an employee to stay away from the office i.e. are they at such a risk of being infected that they must stay away?

Historically employers have placed a high level of emphasis on and encouraged a culture of tolerance and the struggle to attend work even when you are not physically fit. In the modern world this effectively amounts to being a breach of an implied term of the employer's duty to take reasonable care of its employees' safety and working conditions. Hence the attitude to attend work irrespective of health must change.

When examining this issue the employer must assess whether there is a genuine belief that the employee will contract the infection. Questions to determine why and how they could contract the infection must be asked to establish this. Employee fear cannot be taken into account.

Current governmental guidance is that employees should attend work as normal unless there is a risk imposed in that workplace. However, this advice may change, so employers must pay close attention to the statutory and contractual rights employees have in relation to sickness.

At the moment when employees consider whether they are within their rights to stay away to avoid the risk of infection, effectively the answer is 'no'.

Could I claim if I catch flu at work as a result of my employer not protecting me? What would I do to prove it was work related?

Employers should ensure that they adhere to government guidelines in respect of protecting against swine flu as well as updating their own policies to ensure that anyone affected by the virus stays away from the workplace to prevent the virus being passed on to others.

An employer owes its employees a duty of care and by not having adequate controls in place it could be argued that they have acted negligently and are in breach of this duty of care. This could give rise to potential claims from employees who may have contracted the virus at work, through contact with other colleagues or clients that have had the illness.

Employers should also ensure that they have adequate employee liability insurance in place to cover themselves in the event of such a claim.

What is the position of employees who have high contact with the public (either inside or outside health services)?

The government has advised that employees with regular public contact should carry out their duties as normal. However, employers whose staff have high contact with the public would be advised to carry out a risk assessment and issue its staff with face masks where needed.

Employers who work for the health services should take particular care in relation to swine flu. They should report to their line manager if they have had contact with someone who has been diagnosed with swine flu or have flu like symptoms themselves. Employees who have been diagnosed with swine flu should usually stay away from work until all the symptoms have been gone and they have been signed fit for work by their GP. However, employees may be able to come back to work early in order to work within a sanctioned off area for patients with swine flu, in this scenario they should ensure that they remain in the sanctioned off area at all times, including during rest breaks unless there is a particular risk of infection in their workplace.