The possibility of a flu pandemic has been taken more seriously since the discovery of the H5N1 virus on a Bernard Matthews turkey farm in Suffolk.
The virus has yet to mutate into a strain which can be passed between humans, but if this happens government figures suggest that up to a quarter of the UK workforce could be absent at the peak of an outbreak, either because they are sick themselves or because they have caring responsibilities.
The impact on the economy could be catastrophic. However, there is much that employers can do to prepare.
A sensible starting place would be to consider the basic requirements of the business without which it will not be able to function. Particular regard should be paid to the minimum number of employees required to run each division or department. As part of this exercise, it would be useful to compile a list of the transferable skills of each staff member, and consider which staff could be easily retrained or redeployed in the event of a heavily depleted workforce.
You should also be prepared for the possibility of hiring and training additional temporary staff to supplement departments where staff numbers have fallen below the minimum level required.
Be prepared for the possibility that it will become harder for employees to attend work. For example, travel restrictions may be put in place, or public transport may be suspended. Employers should consider using (or indeed investing in) technology such as remote access via broadband or satellite connections, to enable employees to work from home.
Allowing employees to work more flexible hours may also enable them to undertake their obligations to care for sick relatives without having to stop work completely.
The wonder of technology
Consider how information will flow to employees and to suppliers and/or customers or clients. Communications may be of vital importance in keeping the business running smoothly, so an emergency communications plan should be put into place, which identifies key contacts and sets up chains of communication so that information can be disseminated quickly to the relevant people.
Communications technology such as the internet, video and telephone conferencing are all effective tools that overcome the need for business travel and allow meetings with customers and clients to continue with minimum disruption. Even technology more usually used for leisure, such as webcams or real time e-mail conversations, could be remarkably effective in allowing businesses to continue at levels as close to normal as possible.
All these suggestions will require careful implementation, so employers should consider whether it might be necessary to put further employment policies in place to deal with them. In particular, employers should consider flexible working policies, covering flexibility of both hours and location, health and safety policies aimed at preventing the spread of the illness among employees who do attend the office, and policies that deal with how to reintegrate employees back into the office environment after they have been ill or caring for sick relatives. Review sickness policies to ensure they deal with all the relevant issues, including the potential for employees to be absent for extended periods, and the appropriate compensation in such a situation.
Government advice suggests that a vaccine for the potential human strain of H5N1 will take some time to develop after the virus has mutated. When this is available, employers may wish to encourage their employees to be vaccinated, and could offer vaccinations to employees, provided that this is cost-effective – on the basis that this would cut down the need for employees to take time off sick.
Dealing with absence
In the event of a pandemic it is likely that as well as employees who are absent through sickness or caring responsibilities, there will be some employees who do not wish to come to work because they are frightened of contracting the virus. The legal position is that employees are not entitled to refuse to come to work on the basis of such a fear alone, but employers must accept that such fears might outweigh concerns about being subject to disciplinary action.
A recent amendment to the Statutory Sick Pay Regulations 1982 relaxes the requirements for payment of statutory sick pay (SSP), so if an employee is excluded, abstains or is prevented from working because they are a carrier of or have been in contact with a case of a ‘relevant disease’, the employee is deemed incapable of working and is, therefore, entitled to be paid SSP. This is another reason to consider how to maintain a business with a workforce that does not attend the office every day for the duration of the pandemic.
No matter how careful the preparation, some companies could lose business as a result of a pandemic, and this may force employers to consider making employees redundant. Employers should ensure that they consider potential redundancies very carefully – even extreme circumstances such as a flu pandemic do not negate the requirement to carry out a fair procedure with proper selection and consultation and compliance with statutory dismissal procedures, and failure to comply with these requirements could lead to claims for unfair dismissal.
Seán Lavin is a partner at Macfarlanes
This article was first published in May 2006 in Employers’ Law and has been edited slightly in the light of the discovery of H5N1 avian flu on a poultry farm in Suffolk in February 2007.