Employers who are not seen to be adequately protecting staff from swine flu could be sued by angry employees, says Gary Tait, who advises on how you can protect both employees and the business.
Being sued by an employee is a nightmare scenario for an HR team, but one which could possibly come true if Britain is hit by a swine flu pandemic this winter. Health and safety legislation could be used by employees who fear they have been exposed to the virus at work; and a win could cost your company several thousand pounds in damages – plus the negative attention surrounding a high profile and unusual court case.
Of course, it’s the job of every employer to provide a safe working environment. That’s what health and safety laws require. And it’s right for the HR team to pay its part in protecting the company. So let’s look at how employees would be able to sue, and what you can do to protect your company.
At a very basic level, if an employee believed their employer had failed to take appropriate measures to protect them, they could bring a personal injury claim. The employee would have to show that they would not have contracted the disease but for the employer’s failure to protect their staff against it.
They could have a claim for unfair dismissal if they were dismissed as a result of absences from work, when swine flu was contracted while at work.
A more realistic scenario for unfair dismissal would be if the company had lost business as a result of the pandemic, and had been forced to make employees redundant. As in any redundancy situation, there is still a need to carry out fair procedure with proper selection and consultation.
Employer and employee may come into conflict with one another on issues such as length of leave and whether such leave should be paid or unpaid. This could lead to potential allegations of discrimination or breach of trust and confidence.
If a pandemic develops, it is likely that some employees will be required to work from home or to stay away from work for a period of time. Unless such a plan is provided for in their employment contract, imposing these changes will constitute a unilateral variation. And that’s a potential claim for constructive dismissal.
Throughout the duration of a pandemic, it is likely that the workforce will be depleted. So it is important to ensure that appropriate training is given to remaining workers who may be required to carry out unfamiliar tasks.
Young or pregnant workers are particular categories of employee to be borne in mind in any temporary reorganisation, and should not be substituted into inappropriate work.
Sickness absences may create a need for other employees, if willing, to work longer hours in order to keep your business going. Ensure you comply with the requirements of the Working Time Regulations 1998 as amended to ensure appropriate length of daytime working hours, night shifts and rest breaks.
As with any HR issue, prevention is always better than cure. And there are many things you can do to ensure your business is fully prepared. The golden rule is that if an individual becomes ill whilst at work they should be sent home immediately, advised to contact the National Pandemic Flu Line Service and told not to return to work until the symptoms have cleared and they feel well enough.
Have clear contingency plans for staff absence, identifying key staff and how their job functions will be covered if they are unavailable. The nightmare scenario of the entire management team being unavailable should be considered.
Your company should take clear recorded steps to raise awareness among all staff of the signs and symptoms of flu. Continue to raise awareness of the importance of respiratory etiquette such as covering your mouth with a tissue when coughing or sneezing and disposing of tissues appropriately. Give all employees easy access to proper hand hygiene facilities such as bacterial hand gels, and clean surfaces frequently touched by hands.
Allowing employees to work more flexible hours may allow them to fulfil their obligations to care for sick relatives, or for children whose schools have closed, without having to stop work completely. If there are employees who can safely work from home then this should be identified in advance and encouraged.
Consideration will need to be given to suspending the normal practices around return to work, sick pay or dependant leave. For example if the company sickness policy states that an individual should return to work as soon as possible – whereas a person suffering from swine flu should not return until they are advised they are unlikely to be infectious – then review relevant policies such as sickness, absence or dependant leave policies and consider how these might need to be modified.
Finally, it’s important to remember that, legally, employees are not entitled to refuse to come to work on the basis of a fear of contracting swine flu, but employers must accept that such fears might outweigh concerns about being subject to disciplinary action. Discipline with a gentle hand in times of crisis is not only legally sound, but will give you a huge goodwill benefit in the eyes of the employee too.
Gary Tait is a partner at Tollers LLP, a Midlands regional law firm.