By Daniel Oakland - Head of Employment Law, Kerman & Co LLP

It seems inevitable that swine flu pandemic is going to affect most businesses in some measure. Reports that there would be 100,000 new cases every day by the end of August seem to have been a little overdone – new cases having hit a high of 110,000 per week in July and dropping off sharply in August. Nevertheless, it is reasonable to assume that once the Summer (such as it is) is over and children start returning to school, infection rates will rise again.

From an employer’s perspective the pandemic raises two very real issues that must be addressed:-

• Business continuity in the wake of a sick and absent workforce
• The employer’s obligations to its workforce to maintain a safe working environment

Business Continuity

As swine flu spreads then some level of disruption is inevitable. Businesses that plan and prepare against such disruptions are more likely to be able to ride out the storm without too much damage. Failure to plan could be catastrophic.

The potential for chaos is significant. Not only is the workforce at risk of becoming ill, but also their spouses, partners and children are equally at risk, leading to the situation where even healthy employees will be unable to come to work as they have to care for sick dependants.

To reduce the impact of these potential problems, businesses need actively to consider and implement policies and procedures designed to minimise the impact of absenteeism in their own workforce and also in the workforce of suppliers and other businesses and services that are complimentary and necessary to the smooth running of the business. 

The following are some measures that should be considered:-

• Identify a continuity coordinator and/or team.  Agree and define roles and responsibilities with them.
• identify critical activities that must be maintained and, by extension, what work could be deferred
• identify the resources needed to deliver these critical activities, particularly staff , but also suppliers, sub-contractors, logistics etc
• consider both the number of staff they will need and which specialist skills, knowledge or authority those staff will require
• make available the information that staff will need in order to deputise for others
• put in place arrangements so changes in work priorities can be implemented and resources realigned, in order to maintain critical activities
• put in place arrangements to maintain good communications with staff, customers and suppliers
• where possible set up systems for remote working from home for absent employees
• ensure that the firm’s web site is kept updated with information outlining how both staff and customers can get in contact in an emergency situation.
• establish policies for flexible working (e.g. another office, temporary office space, or working from home) and flexible work hours (e.g. staggered shifts).
• consider how internal resources could be re-allocated to ensure that vital activities are maintained. If necessary consider providing some training to staff in areas that may require cover.  This is good practice in any case for staff development and business contingency.
• discuss with suppliers/sub contractors whether they have robust business continuity plans in place.
• consider where to source additional workers at short notice, such as contractors or retirees.
• consider the potential impact of restricted travel, whether international or domestic, on business activities.  For example consider using video-conferencing or audio-conferencing instead of travelling to meetings.

The evidence so far is that individual cases of swine flu will generally last for around a week, so there should be no reason why businesses should be crippled by short-term absences.  Proper planning can help to ensure that even where a significant proportion of a workforce is absent, the business will nonetheless be able to operate.

Responsible Employers and Duties of Care

While the Government and the WHO have made it clear that the pandemic is now unstoppable, that does not absolve employers from their duties and potential liabilities as regards the health and safety of their employees.

A lot of what should be done is little more than what commonsense would dictate. However, simple acknowledgment of commonsense actions is not sufficient. It is the application of policies and solutions which is most important. It is inevitable that some employees will catch swine flu, and some of those will contract it at their place of work. The potential for bringing a claim against an employer is all too obvious, and the ambulance-chasers will not be slow to respond! All employers should, at the very least, consider the following:-

• Ensure that all staff are aware of the threat of swine flu and provide them with literature which has been widely distributed by the government and also with details of links to relevant government websites.
• Distribute information to all of the workforce via internal e-mails, memos and noticeboards and, where appropriate, meetings or seminars.
• Ensure training and awareness of hygiene issues and practice in order to minimise the risk of infecting others. Provide antiseptic wipes or similar, and ensure that these are available and used for shared equipment such as telephones
• Provide clear guidelines to all staff as to what they should do and to whom they should report in the event that they either exhibit symptoms themselves or have been exposed to someone who has or may have symptoms. Employers may wish to consider making such reporting mandatory to avoid the problem of “heroic martyrs” struggling into work only to infect the rest of the workforce.
• In the light of government advice that people exhibiting swine flu symptoms should not attend their GP’s surgery, employers may, in the short term, need to consider relaxing the requirement to provide doctor’s certificates, albeit that they can still insist on individual compliance with self-certification requirements on return to work.
• Employers may also be advised to review their policies on pay for staff who are absent through sickness or who are unable to or advised not to attend work because of contact with infected persons or a need to care for dependents.

Employers will need to tread a careful path between encouraging staff to stay away to minimise risks of infection and simply giving staff an easy opportunity to take a few days off.  Indeed a number of recent headlines have trumpeted “Swine Flu Skivers Costs Firms More Than the Virus Itself”.

There will of course always be malingerers and employees who take advantage of the situation, but the potential risk of liability for an employer who forces employees to work when they are really ill or knowingly or recklessly exposes them to likely infection means that employers may be well advised to consider erring on the side of caution while individual situations are clarified.

Already a number of lawyers and personal injury claims companies have already started appearing on the news and radio suggesting that infected staff may have valuable claims against their employers. Unpalatable though this may be to many bosses, they may have a point!

The swine flu situation changes rapidly and its effect on companies may be equally rapid. These are just some issues for employers to consider. Nevertheless, individual circumstances will require individual responses, and every employer should be vigilant to take such measures as it can in order to protect its workforce and to avoid potential liabilities.

Daniel Oakland is a partner and head of the Employment Law department at Kerman & Co LLP. If you require further information on this or any other aspect of employment law, please contact Daniel on 020 7539 7272 or [email protected]