Last week, the World Health Organisation ("WHO") raised its pandemic alert level to Phase 5 (meaning that there has been human-to-human spread of the swine flu virus into at least two countries in one WHO region). Over the bank holiday weekend the UK confirmed 14 new cases of individuals contracting the virus and hundreds of suspected cases that were being investigated. Whether a pandemic will result is not yet clear but it is important that UK employers are pro-active about the potential threat of such a pandemic and consider the impact it may have upon their business. It is also a good opportunity for employers to remind themselves of their legal obligations towards their employees.
Health and safety obligations
All employers owe their employees a duty of care to provide a safe working environment. Therefore, employers should take all reasonable measures to ensure that their employees are protected from reasonably foreseeable dangers. Arguably, as a result of WHO raising its pandemic alert and the confirmation of numerous swine flu cases in the UK, the threat of swine flu is now a foreseeable danger. As a result, employers should be taking all reasonable steps to protect their employees from the possibility of catching swine flu at their place of work.
In addition, the Health and Safety at Work Act 1974 (the "Act") and The Management of Health and Safety at Work Regulations 1999 (the "Regulations") set out statutory obligations that employers owe to employees. The Act sets out general duties and the Regulations are more explicit in respect of what employers are required to do to manage health and safety under the Act. Under the Regulations employers are required to:
- carry out an assessment of risk to employees' health;
- have in place a clear emergency procedures policy should there be an event that results in 'serious and imminent danger to persons at work';
- communicate relevant information about the emergency procedures to all employees; and
- provide appropriate training to all employees to ensure that the emergency procedures have been understood.
Most employers will already have business continuity plans in place but it is sensible to review these to consider whether they deal with a situation such as an infectious disease pandemic. If not, then they should be amended quickly and re-communicated to employees.
It should not be forgotten that under the Act, all employees have a general duty to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by their actions at work. Employers should remind their employees of this and warn them that their failure to adhere to an emergency procedure, which results in other employees suffering, could result in disciplinary action or even prosecution under the Act.
Recommended immediate action
- Carry out a swine flu risk assessment and identify the key issues that may arise as a result of a pandemic materialising.
- If one does not exist already, adopt a business contingency plan outlining how the business will continue during and after an emergency situation and prepare an emergency procedure that is specific to the threat of an infectious disease pandemic. These should be communicated to all employees and regularly reviewed so that employees know how to act should a pandemic occur and/or they contract symptoms that are associated with the pandemic disease.
- Ensure that all employees are provided with up-to-date information on what swine flu is, its threat and symptoms and advice on how to minimise the spread of the disease through good hygiene. Providing links to Government and health organisation websites is advisable, such as http://www.dh.gov.uk/en/index.htm and http://www.who.int/csr/disease/swineflu/en/index.html.
Other practical points to consider
- Employee absenteeism – a high level of employee absenteeism is inevitable if a swine flu pandemic hits the UK. In 2007, the Cabinet Office and Department of Health published a joint report which set out what the Government's approach would be to a flu pandemic. The report estimated that 50 per cent of the workforce would require time off at some point during the pandemic and that, during the pandemic's peak, which would be likely to last two to three weeks, an estimated 15 to 20 per cent of the workforce would be absent.
There are certain steps an employer can take now to start to plan for the possibility of large scale absenteeism. For example:
- Identifying: the essential positions within the business; what needs to carry on during an emergency; and what is the minimum number of employees required?
- Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
- Considering the possible need to recruit an unusually large number of temporary staff.
- Considering flexible work patterns, such as employees working from home.
- Identifying those employees who have the necessary IT infrastructure to work from home (e.g. remote access to the office computer systems).
The likelihood of flexible and remote working patterns during a pandemic would inevitably lead to employers having to consider legal implications such as ensuring compliance with health and safety and working time regulations and checking that employment contracts are not breached. Another important consideration would be the safeguarding of business confidentiality and data protection whilst employees are working within a home environment.
Bear in mind as well that employees have a statutory right to take time off work, in emergency circumstances, to care for or make arrangements in respect of a 'dependant'. This would be likely to apply to many employees if a pandemic were to materialise, with employees requesting time off to look after sick relatives or children whose school has been closed.
- Disciplinary action and dismissal – if a pandemic occurs it is possible that employees might refuse to go to work if they are concerned about catching the disease from other employees. Under UK employment law, an employee is automatically unfairly dismissed if the reason for the dismissal is that the employee reasonably believes that they are in serious and imminent danger. However, this relies on the employee's belief being reasonable and this may not be the case until advice given by health experts and the Government is that the pandemic disease has become so contagious that employees should remain at home. If, in the view of the employer, employees are unreasonably refusing to come into work for fear of catching a disease, then they can be disciplined and, if appropriate dismissed, so long as a fair procedure (incorporating the recently revised ACAS Code) is followed. Having said this, employers will undoubtedly wish to exercise sensitivity should a pandemic materialise.
Employers may also face the opposite scenario where employees who have flu-like symptoms refuse to stay away from work or fail to comply with the employer's health and safety policies for emergency situations. In so doing, employees are likely to increase the risk of their healthy colleagues becoming infected. Again, these employees can be disciplined provided that a fair disciplinary process is followed.
- Employee consultation – as the impact of a pandemic could result in the working patterns of employees changing, it is advisable to consult and communicate with them on a regular basis so as to obtain their agreement and support. This will also allow the rapid dissemination of information to employees, in addition to company intranets and email. An existing employee consultation body will be helpful for this purpose.
- Data protection – a global flu pandemic is likely to result in the need for employers to collect, hold and disclose medical information about its employees. As a result, the requirements of the Data Protection Act 1998 (the "DPA") will be particularly relevant. Information about employees' health will constitute 'sensitive personal data' and therefore such information will have to be processed in accordance with the DPA.
The potential impact of swine flu is still not known but it will undoubtedly be a major consideration for employers over the next few weeks, or even months, should a pandemic materialise. As such, it is important to be prepared. As a first step, we recommend implementing the immediate action plan outlined above, as well as considering the other issues raised in this alert.
For those of you whose business extends to Asia, you may wish to read a similar client alert prepared by our Hong Kong Employment and Benefits group which can be accessed through this link:
For more information, or if you have a question on this subject, please contact:
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