Swine Flu and employment law – prevention is better than cure

Employees not adequately protected from swine flu could theoretically sue their employer under Health & Safety legislation for not providing a safe working environment.

If an employee could show that they contracted the disease because their employer failed to protect them against it, they could launch a personal injury claim.  If a pandemic affected unprotected employees and resulted in lost business and subsequent redundancies, an employee may bring a case for unfair dismissal.

Disputes arising from whether sickness absence is paid or not, and difficulties around requirements to stay away or work from home that are not covered by employment contracts may give rise to other allegations (such as unfair dismissal).  If staff numbers are depleted the remaining ones may be required to take on additional work (working time regulations), or work for which they are inadequately trained.  Young or pregnant workers may be considered particularly at risk.

As with the disease itself, prevention is better than cure.  Employers need to do all they can to prevent the spread of the disease – send ailing staff home immediately, provide hand wash, maintain high standards of cleanliness, etc.  But they also need to have contingency plans in place, including how the organisation will operate if management are affected, and to ensure that full records are kept of any preventative or reactive actions that are taken.

It is a good time to review your sickness and return to work policies, as well as those for leave to care for dependants and flexible working, to make sure that they are appropriate to normal working and to assess if changes could be made temporarily to accommodate a flu pandemic or other emergency situation.