Swine Flu

by Hazel Phillips

With the launch of the National Pandemic Flu Service in England, swine flu and sickness absence have proved to be a cause of major concern for employers this summer.  Media reports still suggest that the number of confirmed cases of swine flu in England are doubling every week and figures published at the beginning of the month suggested that there could be over 100,000 new confirmed cases of swine flu per day by the end of August. 

Despite all the ‘doom and gloom’ forecasts swine flu has not, so far, had the major impact predicted in the media.  However, that is not to say that employers should be complacent.  All those employing staff should undoubtedly review the systems that they have in place to cope with increased levels of absence and should consider conducting risk assessments now in order to establish what, if any, dangers would arise if a member of staff contracted swine flu so that an action plan can be drawn up to be followed in the event that this scenario is realised.  Having said that, there is a real question mark over whether employers need to panic quite as much as the media has suggested.

The most important thing to remember is that swine flu is in fact just a specific and named type of flu.  Although the majority of swine flu cases in England so far appear to have produced only mild symptoms, most employers will be aware that flu is an unpleasant virus and those that suffer from it are usually unfit to attend work for at least a week.  Even before the development of swine flu, socially responsible employers who want to protect their workforce should have been encouraging any member of staff with flu like symptoms to remain away from work so as to reduce the risk of other employees becoming infected.

However, some reports in the press have suggested that employers should go much further than this because of the potential for personal injury claims from those who allegedly contract swine flu at work.  Although employers should be proactive in helping to spread the Government’s anti infection message (for example, washing hands regularly, sneezing into a tissue and binning it and regularly cleaning work surfaces including telephones) not providing antibacterial gel or hand wipes or refusing to give emergency leave to those who may have come into contact with a distant relative who might have bumped into someone who could possibly have contracted swine flu is unlikely to lead to future liability.

For most employers, it should be sufficient to ensure that their employees have access to information about the symptoms of swine flu, are aware of the Government’s guidance on how to prevent the spread of swine flu and know the details of the National Pandemic Flu Service website (www.pandemicflu.gov.uk) and the Swine Flu Information Line number (08001 513 513) so that people who have concerns have access to help.  The reason for this is that anyone wishing to bring a personal injury claim has to show a causal link between their injury and its source. 

As a sociable society, it is likely to be exceptionally difficult for an individual to prove that they contracted swine flu from one particular source.  Even if another member of staff becomes ill with swine flu, who is to say that the person bringing the claim actually caught the illness from the individual at work as opposed to somebody that they bumped into on the street, met in the supermarket or sat next to on the train. 

That is not to say that employers can shirk all responsibility.  Every employer has a duty to provide a safe place of work and a duty to protect employees from potential hazards so employers should consider whether they want to insist that employees who display symptoms of flu taking time off.  Employers should also consider what to do with those who continue to come into work with mild symptoms because of loyalty and those that choose to return to work before their recovery is complete.  Given the potential risks of the virus making whole sections of a business unavailable due to ill health, employers may wish to take a slightly more robust stance than usual in order to prevent more people becoming infected. 

More taxing is the question of whether employers have an obligation to inform staff that a colleague has contracted swine flu in order to discharge their duty of care.  Doing so and asking fellow employees to watch for similar symptoms could be an excellent way of limiting the spread of the infection whilst at the same time protecting those not currently affected.  However, employers wanting to adopt such a strategy should be aware of the implications of the Data Protection Act.  Disclosing details of someone’s medical history is a disclosure of sensitive personal data and requires an employee’s express consent.  Mentioning that a member of staff could have swine flu may also panic other staff and could cause people to refuse to come to work for fear of contracting the virus.

The Employment Rights Act actually provides protection for those who believe that they are in serious or imminent danger. Having said that, an employee’s belief in the danger has to be reasonable and, if the person infected is in a totally different department, building or geographical location it is unlikely to be reasonable for the employee to believe that they are in imminent danger from swine flu.  Equally, although flu can have severe consequences, for most people it is unlikely to be a deadly illness.  Consequently, employers who follow all Government guidance and do their best to ensure that employees are protected as far as possible, should be able to treat an employee’s refusal to work as misconduct and should be able to start disciplinary action.

However, with a Government recommendation that those who believe that they could be suffering from swine flu should stay at home rather than actively seeking out medical attention from their GP, swine flu may be just the excuse that some employees need to try to utilise their sickness entitlement for extra holiday.  Such problems could be exacerbated if the Government follows through on its proposal to extend the self certification period to 14 days. 

GPs can test for swine flu and employers who consider that an employee is faking an illness or exacerbating symptoms could ask the member of staff in question to submit to a medical examination but this would have to be at the employer’s expense and could be fairly costly given that the medical profession is unlikely to be willing to commit precious resources to trying to weed out fraudulent sickness claims during a pandemic.  However, for those with the resources to explore medical testing, taking a harsh stance with one member of staff could reap benefits at a later date by persuading others not to adopt similar practices.

Another source of problems will be the employees who request time off to care for sick children or other relatives.  Under the Employment Rights Act, employees have the right to take unpaid emergency leave in order to make arrangements for the care of a dependant or to deal with an unexpected disruption in care.  This could include a school or nursery closure as a result of a swine flu outbreak.  However, the amount of time that an employee can take in such circumstances is only as much as is reasonable and necessary in the circumstances. 

This is usually quite limited because the right is for time off to arrange for the provision of care, not to provide that care yourself.  However, if nurseries, schools or other normal child care provision shuts due to an outbreak, or a dependant actually falls ill with swine flu, it may be much more difficult than would normally be the case to find an alternative source of care. What time off is deemed to be necessary depends entirely on the facts of each particular case and the circumstances of the employee in question but if staff have no option but to provide care themselves then the length of time that may be necessary for someone to take off for swine flu related dependant emergencies could be vastly longer than would normally be the case.

Any employee who has been unreasonably refused time off in such circumstances is entitled to bring a claim in an Employment Tribunal for that and may also look to bring a claim for constructive unfair dismissal.   The fact that significant numbers and lengthy periods of absence might be difficult for an employer to accommodate is entirely irrelevant. 

Conflict may also arise from those who have had high levels of absence in the past and whose genuine swine flu absence takes them over an employer’s previously established tolerance levels.  Although an employee may feel particularly aggrieved that swine flu has been the cause of disciplinary action, it is worth remembering that the passing of an acceptable level of absence is unlikely to be caused by just one episode of swine flu.  The real reason for disciplinary action in such circumstances is the previous episodes of repeated, intermittent short term absence.  This should mean that the disciplinary action is warranted regardless of the seriousness of the illness contracted on this particular occasion.

In truth, the best way to address these issues will be to carry out standard sickness absence monitoring.  Keeping records so that patterns can be identified (watch for the regular swine flu contractors!) and conducting return to work interviews in order to deter those who might be tempted to stay off a little bit longer than might be strictly necessary. Having a good idea as to the rate of the spread of flu, if any, in an organisation can help with future planning and task redistribution but questioning the reason for someone’s sickness absence is always a sensitive area.  It can help to dissuade those who might be tempted to use the threatened pandemic, or another employee’s misfortune in contracting the virus as an excuse to have an extra week’s holiday but doubting the validity of someone’s explanation for sickness absence can also destroy the relationship of trust and confidence and could give the employee concerned cause to resign and claim constructive unfair dismissal.  However, an employer has a legitimate right to ask and challenge the reason given for an absence – it is always a question of balance and trying to maintain a sympathetic approach.

On a practical level, as all of us are well aware of the dire warnings and would undoubtedly want to make the situation as easy as possible for those who are at risk of contracting the virus, employers may be persuaded to be a little more sympathetic than they might otherwise have been and to think a little ‘outside the box’ so as to accommodate, in the best way possible, high levels of staff absence.  For example, introducing greater scope for home working or allowing temporary flexible working patterns could help to address absence caused by the need to provide care to others.  Telephone conference calling, email and other technologies that may already be in place mean that most office based jobs can be performed from home with very small adaptations.  It might be worth exploring the viability of these options, before the real problems arise because allowing people to remain at home in order to fully recuperate and/or accommodate caring for others will undoubtedly assist with staff morale whilst also allowing a business to continue to function in as normal a fashion as possible.

For further information on managing sickness absence, contact Hazel Phillips or one of the other employment law solicitors on 01228 552222.

Aug 09

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