Legal Q&A: Bird flu pandemic

It is hard to ignore the possibility of a bird flu pandemic caused by the potential mutation of the H5N1 flu virus into a strain to which humans are susceptible. If such a pandemic occurs, it will inevitably result in higher than usual levels of staff absence, which could have far-reaching effects for employers, unless precautions are taken. Cabinet Office guidance on contingency planning for a flu pandemic released in February anticipates that 25% of workers will be absent for between five and eight days over a period of three to four months due to sickness and caring responsibilities, although a worst-case scenario could see staff absenteeism peaking at 15% at the height of a pandemic. However, there are steps that employers can take to minimise the impact on their businesses, if and when such a pandemic occurs.

Q. Does an employer’s duty of care to staff extend to offering inoculation against bird flu?

A. Health and safety law requires an employer to take such steps as are reasonably necessary to ensure the safety of their employees. This does not extend to offering inoculation against an illness such as bird flu (an exception to this may be if exposure to such a disease was a necessary consequence of the employment). However, if a vaccine is available, it may be sensible for employers to offer it as a part of their contingency plan to help avoid excessive employee absence, provided that the costs do not outweigh the benefits.

Q. Are a worker’s fears of contracting bird flu sufficient grounds for refusing to attend work?

A. Fear of contracting an illness is not a sufficient reason for refusal to attend work, and an employer faced with a refusal would be entitled to consider taking disciplinary action. They could, for example, refuse to pay the employee on the basis that they are failing to perform their part of the contract.

However, employers should note the recent amendment to the Statutory Sick Pay (SSP) Regulations 1982. It states that if an employee is “excluded, abstains or [is] prevented from working” by reason of their being a carrier of, or having been in contact with, a case of a “relevant disease”, then they are deemed incapable of working for the purposes of the payment of SSP. This provision, which came into force on 10 April 2006, relaxes the earlier requirements for payment of SSP in similar circumstances. Any employees to whom this provision applies may not be disciplined for their refusal to attend work.

Q. If employee absences result in a downturn in business, can staff be laid off?

A. A downturn in business may have an impact on the amount of staff required, in which case an employer may be entitled to make employees redundant. If staff are to be laid off, the employer must be sure to carry out a proper selection and consultation procedure, including compliance with the Statutory Dismissal Procedures, to avoid the risk of unfair dismissal claims.

Q. How can companies avoid disruption to their business?

A. Employers should make plans for running their businesses with minimum staffing and consider retraining or redeploying staff. It may also be necessary to take on temporary staff, so appropriate paperwork, such as temporary contracts, should be put in place in preparation.

Employers should consider introducing measures such as flexible working to ensure as many staff as possible can continue to work. You should also consider providing accommodation in case transport disruption or movement restriction means that staff are unable to travel home for extended periods of time.

Introducing new methods of communication (such as video conferencing and webcasting) may be helpful in containing the spread of pandemic flu, as employees will not be required to travel unnecessarily.

Even smaller changes, such as introducing an information bulletin to ensure employees are up to date with all relevant information – including numbers to call if they cannot attend work and areas where movement is restricted – will be helpful in ensuring that the impact of pandemic flu is minimised and businesses can continue to function at as close to normal levels as possible.

For more on how to survive an influenza pandemic, see the May issue of Employers’ Law, out on 10 May

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