BF and employer legal implications

    Don't try to wing it when bird flu lands

Thinking ahead could save employers from unnecessary legal complications if bird flu turns into a pandemic


Marc Meryon and Clara Sands

Issue date: 04 May 2006
Source: People Management magazine

Page: 19


Each new report of avian flu brings the spectre of a human pandemic in this country one step closer. The widespread employee absence this would cause may expose employees to unfamiliar risks – and employers to unforeseen liabilities.



The possibility of a flu pandemic is considered serious enough by the Department of Health and the Health and Safety Executive (HSE) to provide guidance, even though it is still only a potential risk (www.hse.gov.uk/biosafety/diseases/pandemic.pdf).



If there were an outbreak, the government would probably invoke emergency powers under public health laws requiring employers to notify infected staff and implement social distancing measures, such as sending employees home.



The HSE is particularly concerned with the risks faced by employees forced to stand in for colleagues without having had proper training, particularly young or pregnant employees. Employers will need to take care that such employees are not substituted into inappropriate work. Requiring mothers with children to work flexibly may constitute indirect discrimination.



Employers are required to undertake risk assessments of employees' health and safety under the Management of Health and Safety at Work Regulations 1999. They should also conduct and record risk assessments associated with specific roles so they will be prepared for other employees having to substitute during a pandemic.



Employers do have the discretion to adopt new rules to govern workplace behaviour. During a pandemic they may have to amend the rules governing fitness for work, for example, by requiring employees to undergo daily screening. How much flexibility they have in dealing with those too ill to work will depend on employee contracts. They should consider amending sick-pay policies, although this will constitute a contract change and require employee consent. Any attempt to make changes such as this unilaterally would expose organisations to claims for constructive dismissal.



There is a remote chance that an employer might be accused of negligence if, for example, it knowingly put an employee at risk of catching the virus. Employers are obliged to ensure employees' health, safety and welfare only as far as is reasonably practicable. But whether the gravity of a flu-related infection would extend their common-law duty of care to preventive measures is not clear. Any breach would have to involve an employer's failure to respond to accepted guidance.



Employees who refuse to attend work for fear of getting ill will be committing gross misconduct entitling the employer to dismiss them, providing that it has followed government guidance, adhered to the statutory disciplinary process and checked that refusals are not based on a reasonable belief that attending work would put them in serious danger. If this were the case, the employee would be protected against dismissal or disciplinary action.





Law on lay-offs

In the worst-case scenario, employers may wish to lay off employees without pay during a pandemic. These cannot be implemented without employee consent, given either in the contract or on an ad-hoc basis. Otherwise, the only option is redundancy. If 20 or more employees are involved, this triggers a duty to consult and prolongs a painful process.





What to do in an emergency

If a pandemic is formally declared in the UK, employers should do the following:

• stay informed of government directions;

• send employees with flu-like symptoms home as soon as possible;

• encourage employees to work from home and use video or teleconferencing where possible;

• consider cover for sick employees, review risk assessments for their roles and train those people likely to undertake unfamiliar tasks;

• think about extra risks to employees forced to work in locations remote from their workplace;

• remember that all employees will still be bound by the Working Time Regulations 1998;

• agree a framework for exercising discretion over absence and sick-pay entitlements. Any inconsistencies in how decisions are taken could trigger discrimination or equal pay claims.

http://www.peoplemanagement.co.uk/pm/articles/donttrytowingit.htm?name=law+at+work&type=section