Stopping flu bugs: dilemma of the month

Q I have received a number of complaints that a member of staff has been coming to work with a bad dose of flu and passing it around the office. Should I have a policy in place for this scenario, and can I force someone who has an infectious or contagious illness to go home and stay at home until fully recovered?

A You are very unlikely to be acting unlawfully if you ask the member of staff to go home and stay at home until fully recovered, provided that you pay them for all of the time they are at home.

Salaried employees are entitled to be paid their salary if they make themselves available for work, irrespective of whether they actually perform any work. As your staff member would not be attending on your instructions, she would still technically be making herself available and therefore entitled to pay.

Therefore, you might want to think about asking her to do some work from home rather than paying her to do nothing at all.

Other than pay, the only other legal issue likely to be relevant is the question of whether sending the staff member home would be a breach of an implied contractual obligation on you as her employer to provide her with work. The existence and extent of this obligation is not very well settled as a legal issue and is only really of relevance for particularly senior or skilled employees. In reality, the staff member in this case is highly unlikely to resign and successfully claim constructive dismissal, arguing a breach of your obligation to provide work.

That being said, if sending sick staff members home to try to prevent colds and the like spreading is something that you anticipate doing at all regularly, then a policy would be a good idea. If the policy was expressed to be contractual, it would eliminate or minimise arguments about whether sending home sick employees breached any obligation to provide work.

It would also serve as advance notice to employees that this was a possibility. In addition it could contain clear principles around when sending employees home would be considered, so that there was a measure of transparency and even-handedness about when this was done.

Last but by no means least, a contractual policy could also explain precisely how pay is to be dealt with, including payments on top of normal salary – for example, shift allowances or regular overtime, when sick employees who are willing to work are sent home.

David Brown, associate, Simpson Millar

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