• Auditing & tax
• Corporate finance
• Financial measurement
• Jobs & careers
• Risk management

• News
• Events

Feature

posted 28 Oct 2009 in Volume 4 Issue 1

In recent months, swine flu has been making daily headlines as the number of reported cases has ebbed and flowed. Over 200,000 laboratory-confirmed cases have been recorded across the world, and the number of actual cases is likely to be much higher than this. However, medical opinion suggests that it has yet to reach its peak. This is widely predicted to occur over coming weeks as the weather gets colder and as children have returned to school, precipitating the spread of the virus. The Department of Health has indicated that, during the autumn, 30 per cent of the UK population could experience symptoms, resulting in one in eight of the UK’s workforce being absent from work, in addition to those on annual leave.

Despite these statistics, 53 per cent of organisations¹ have no plans in place to assist them to manage pandemic flu. These businesses must start to plan ahead by addressing the risks involved and developing effective strategies for dealing with them. With pandemic flu, the keystone of a successful business-continuity plan is a strategy for managing employees. This is crucial to minimising disruption in all areas of the business and should facilitate the continuation of supply chains and fulfilment of customer contracts.

A successful strategy for managing employees should address a number of key issues, including:

Protecting the health and safety of employees

Constructing an effective strategy

Protecting the health and safety of employees during a swine flu pandemic should be at the top of an employer’s business continuity plan. Not only do employers have general and statutory duties to protect the health and safety of employees, but reducing the risk of employees developing swine flu, and managing those who do develop symptoms, is key to minimising workplace disruption and to keeping business running smoothly.

Employers should therefore construct, communicate and follow an effective health and safety strategy, including:

• Keeping abreast of government advice and communicating this to staff;
• Updating contact details of staff and circulating emergency contact details of key staff;
• Carrying out a risk assessment;
• Ensuring good hygiene practices in the workplace;
• Training employees on the key facts and risks;
• Identifying vulnerable employees and considering how the risks to them can be reduced;
• Displaying signs advising of symptoms and steps to reduce the risk of contracting the virus;
• Asking employees to report to HR if they have flu-like symptoms; and,
• Asking unwell employees to stay at home.

Health and safety claims

There has been significant media attention on employers’ personal injury liability in respect of employees who contract swine flu. In theory, it would be possible for an employee who contracts swine flu to bring a claim based on the employer’s alleged failure to comply with its general or statutory health and safety duties. In reality, however, these claims would only get off the ground in exceptional circumstances. A significant, and probably fatal, hurdle for the employee would be proving that the virus was contracted at work. This would be extremely difficult given the extent of the outbreak generally and the highly contagious nature of the virus. In practice, the real risks for employers lie in the legal consequences of failing to manage the employment relationship in an effective and informative manner.

Anti-viral medication

Anti-viral medication to treat swine flu is available in the form of Tamiflu and Relenza, although the effectiveness of these treatments has not been conclusively verified. An employer is not under any obligation to make these drugs available to its employees, but it may choose to do so. An employer cannot require an employee to take the medication, however, and the circumstances under which it could legitimately discipline an employee if he or she refuses the medication are likely to be extremely rare. In practice, it is likely to be limited to circumstances in which there are real and proven risks of the employee contracting swine flu. In this situation, the employer may have grounds to exclude any employee from the workplace who has refused the relevant medication in order to protect the employee’s health and safety.

Quarantine

In normal circumstances, employers are not entitled to prevent employees from coming into work unless this is provided for in the contract of employment. An emerging trend in contracts of employment for senior executives is the inclusion of provisions allowing the employer to exclude the employee in certain circumstances, for example, if they pose a threat to the health and safety of others. If the contract is silent on this issue, unilaterally imposing changes to an employee’s working conditions by preventing them from coming into work could constitute a breach of contract and could give rise to claims for unfair constructive dismissal. The employer would have to justify the exclusion based on legitimate health and safety grounds, including conclusive medical evidence.

Employee fear

Dealing with employee fear can be difficult to manage in practice. Employers face conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence. However, unless there is a particular risk posed in the workplace, employers are entitled to expect employees to come into work as normal. Where employees do not come into work, employers will be faced with a choice between implementing the disciplinary procedure as normal or dealing with the matter with more leniency. There are pros and cons to both approaches. On the one hand, employers will want to deter malingerers. On the other, if a significant proportion of the staff are absent, disciplining (and ultimately dismissing) others is unlikely to prove productive – particularly at a time when the continued goodwill of working employees may be critical.

Employee absence

High levels of staff absence will affect business continuity. Employers need to manage absence caused by both employee fear and genuine sickness. However, in addition to this, employers must also consider how to deal with absence caused by employees who need time off to care for ill dependants and/or to care for children in the event of school closures. In practice, these issues may prove to be the most time consuming of all. The government estimates that school closures could cause an additional 15 per cent of the workforce to be absent.

Employers must therefore devise and communicate a clear strategy for absence management, including:

• Identifying a source of back-up labour, for example, agency workers;
• Identifying staff with interchangeable skills who can provide cover for absent colleagues;
• Training staff to cover key functions and roles; and,
• Investing in and/or utilising technology to allow employees to work from home and ensuring that the IT system can cope with large numbers working remotely. In many businesses, including professional services, this is likely to be key to effective business continuity.
•  

Employers should ensure that they do not breach the restrictions on working hours and rest breaks stipulated in the Working Time Regulations 1998 where staff are called on to cover absences.

Policies and procedures

Employers should review and update any policies or procedures that may be affected by the swine flu pandemic. These are likely to relate to sickness absence, dependent care leave and flexible/home working. Particular issues to consider include:

Whether an employee with swine flu should be certified as fit to return to work by a doctor before returning;

• Whether a sickness absence policy should be amended to take account of the exceptional nature of the virus, for example, allowing employees additional days absence before trigger points for formal action are reached;
• Whether flexible or home working arrangements should be extended to emergency situations;
• Whether the right to take leave to care for dependents should be extended; and,
• Whether any special leave should be paid or unpaid.

Employers should ensure that they effectively communicate important changes to working practices to their employees. However, in general, there is no obligation to consult with employees on any non-contractual changes, for example changes to non-contractual policies. In contrast, for any contractual changes, unless there is sufficient flexibility in the terms of the contract to facilitate the change, employers should consult with employees with a view to obtaining their consent to the changes. A failure to do this and unilaterally imposing the changes could give rise to breach of contract and/or constructive dismissal claims.

In summary

There is no doubt that pandemic flu presents businesses with complex and varied risks, the majority of which stem from the management of employees. However, there are many effective strategies for dealing with these risks. Businesses should not be tempted to bury their heads in the sand. Those that engage with the issues and take a considered approach may emerge from this pandemic both stronger than before and better prepared for any future crises.

1. A decade of living dangerously: The Business Continuity Management Report 2009 – Chartered Management Institute