Employers have legal duty of care over SARS dangers

While the Department of Health is currently playing down risks of a SARS
epidemic in the UK, employers must take sensible precautions to minimise any
danger to staff

With the Severe Acute Respiratory Syndrome (SARS virus) daily in the news
and television pictures of a deserted Beijing, what should employers in the UK
be doing to protect their employees and their business from the effects of this
outbreak?

The Department of Health (DoH) does not presently recommend the mass
quarantining of travellers returning from the Far East, and the secretary of
state for health has resisted calls to make SARS a notifiable disease.

Government advice to schools and colleges suggests that "in exceptional
circumstances" where an individual has been exposed to a known SARS case
in an infected region, it would be prudent to monitor their health for a period
of 10 days. It is not, however, general policy for all those returning from
such areas.

Risk assessment

Despite government policy, many schools and some employers are taking
additional steps including requiring persons returning from infected areas to
remain away from school or work for a period of 10 days after re-entering the
UK. Whether this is necessary will depend on each individual business.

An employer has a legal duty to take reasonable care of the health and
safety of its employees. At this stage, each employer should carry out a risk
assessment of employees’ likely exposure to infectious individuals during the
course of their work, taking account of the advice from the DoH.

Entitlement to pay

The outcome of that assessment will determine what steps – if any – the
employer needs to take. For some employers, this will certainly mean bringing
staff back from offices in infected areas (if this has not already been done)
and considering whether to require those returning from travel in risk areas to
remain away from work for 10 days so their health can continue to be monitored.

What about entitlement to pay during any period of enforced leave? Clearly,
employees returning from business on behalf of their employer should be paid in
full.

The situation is less clear cut for those (if any) who choose to travel
against government advice, ie, on holiday. Any employer simply withholding pay
in respect of enforced leave in these circumstances risks a claim of unlawful
deduction from wages and/or constructive dismissal even if they seek to
introduce a policy purporting to give them that right.

Employees who present themselves as fit and willing to work have a common
law right to be paid unless the contract expressly specifies otherwise. Any
such term must specify the precise circumstances in which pay can be
contractually withheld. Employers would need to seek agreement from employees
as to the introduction of any new term in the usual way.

There are similar difficulties in, for example, requiring an employee to
take additional holidays to cover any period where the company requires them to
remain away from work.

While it may be possible in some circumstances to introduce a policy
requiring employees to take holidays at a specific time, what about situations
where the employee does not have sufficient holiday to cover that period?

Any employer introducing such policies or non-payment policies should ensure
that all employees are made fully aware of the provisions and bear in mind
potential difficulties of enforcement.

Employers should keep up to date with the DoH advice
(www.doh.gov.uk/sars/index.htm) and ensure that further risk assessments are
carried out in the light of any changes.

By Sue Nickson, Partner and national head of employment,
Hammonds

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