What are the duties of an employer concerning the health and safety of staff? Employers are under a general duty to provide a safe place and system of work for all employees. The duty can also arise in respect of agency workers and contractors, depending on the extent to which the employer has control over their work. Employers are thereby required to take reasonable steps to ensure that employees are protected from reasonably foreseeable dangers. Only reasonably foreseeable damage can give rise to liability and employers will not be held responsible where employees are injured at work as a result of a truly unforeseen event. However, a court might accept the argument that where a threat to employees health is readily apparent such as during this flu pandemic an employer does indeed have a duty to take steps to protect his employees.
Employers also have a statutory duty to ensure the health, safety and welfare of all employees at work under the Health and Safety at Work etc Act 1974. Of particular importance in this context is S.2(2)(e), which states that this duty extends to the provision and maintenance of a working environment for employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
To meet its obligations under common law and health and safety legislation during the pandemic, an employer may need to put in place specific health and safety policies aimed at preventing the spread of the illness among employees who come into the workplace. The following are some of the measures a reasonable employer should consider:
making employees aware of the relevant symptoms and ensuring that at the first sign of any such symptoms, employees stay at home
planning what measures should be taken to bring back those employees who have been off sick or caring for relatives
ensuring that strict personal hygiene guidelines (for example, using disposable tissues to control coughs and sneezes, disposing of them appropriately and washing hands before eating, etc) are put in place and adhered to
more frequent cleaning to minimise germs in all common work areas
providing anti-bacterial gel dispensers for staff to wash their hands with although soap and water are adequate
making temporary changes to working practices, such as reducing or even avoiding face-to-face meetings
avoiding public transport
avoiding non-essential business to countries worst affected, such as Mexico and the US
identifying employees most at risk of infection and considering how these risks can be reduced, by, for example, the provision of face masks
considering whether it is feasible to offer employees relevant vaccinations. While an employers health and safety obligations would not extend to offering employees vaccinations against the virus, it may be a sensible option as part of a contingency plan to avoid excessive employee absence if costs permit
Are there special duties to protect vulnerable staff such as pregnant women?
The Management of Health and Safety at Work Regulations 1999 impose a duty on employers to conduct a risk assessment if working arrangements could involve risks to an expectant mother or her unborn baby. Although employers are under this general duty to assess risks to pregnant women, the Government has not issued specific advice regarding the safeguarding of such pregnant women other than indentifying that they are more vulnerable as indeed are people with serious underlying health conditions. It would therefore be premature, for example, to instruct such women to work at home. This could change, though, as the flu spreads and if the number of deaths substantially increases.
An employer has a duty to make reasonable adjustments under the Disability Discrimination Act for those who are HIV positive or otherwise protected by disability discrimination law, and this may involve the employer taking special measures, such as allowing staff to work at home to minimise the possibility of being exposed to infection. In addition, staff with a serious underlying medical condition such as asthma or heart disease require this kind of protection given that so far most of the deaths in the UK have involved people with underlying medical problems.
What potential issues do we face if our staff have to work longer hours to cover for absent colleagues?
Increased staff absenteeism owing to swine flu is likely to result in colleagues taking on extra work. It is important, therefore, that this situation is monitored by the employer. Under the Working Time Regulations 1998, a worker is entitled to:
a daily rest period of not less than 11 consecutive hours
an uninterrupted weekly rest period of not less than 24 hours
an uninterrupted rest break of not less than 20 minutes where the working day is more than six hours long
adequate rest breaks where the pattern of work is such as to put the workers health and safety at risk, particularly where the work is monotonous or the work-rate predetermined
Note that the Regulations apply to workers, which is a wider category than employees. Worker includes employees and anyone engaged under a contract to do any work personally, except those providing services as a profession or business to a client or customer. So, casual and freelance workers will generally be covered, and only self-employed people pursuing a business activity on their own account will be excluded.
Reg 21(e) provides an exemption in certain circumstances, such as where the workers activities are affected by an occurrence due to unusual and unforeseeable circumstances beyond the control of the employer. It is likely that the pandemic would fall within this provision if it gets much worse. However, note that this exemption does not apply to the adequate rest requirement relating to monotonous work in Reg 8.
Where possible, employers should always ensure that workers get sufficient rest breaks and adequate leave. Overburdened and exhausted employees are less likely to work efficiently; they may also be at risk of work-related stress, for which an employer can be held liable; and they are more likely to fall ill.
Can we discipline or dismiss employees who claim to be scared to come to work because of fear of infection? What about those who fail to follow guidelines for preventing the spread of infection?
It is likely that there will be some employees who will not want to come into work because they are afraid of being infected. The Employment Rights Act provides that an employee is automatically unfairly dismissed if the reason for dismissal was that the employee reasonably believed that he or she was in serious and imminent danger and therefore left, proposed to leave or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work. However, cases decided so far under this provision have involved danger emanating from the workplace itself, rather than threats associated with it.
Moreover, the protection relies on the employees belief in serious and imminent danger being reasonable. So, in the absence of evidence that swine flu is a highly contagious and deadly pandemic, the provision is unlikely to be applicable where an employee refuses to come to work on the sole basis of fear of contracting the illness especially if you have made it clear that people with symptoms should stay away. In such circumstances, the employee can be disciplined and eventually dismissed for conduct providing the employer’s disciplinary procedure is followed and the ACAS Code of Practice has been complied with. Such a dismissal will also have to be a reasonable response in the circumstances. Many employers may choose to exercise sensitivity in dealing with such cases and use dismissal as a last resort, not least because such fears may outweigh concerns about being subject to disciplinary action.
An employer may also face a situation where employees with flu-like symptoms refuse to stay away from work. This, of course, increases the risk of infection to healthy employees who attend the workplace. Again, in such circumstances, the employee can be disciplined and dismissed, provided the dismissal is reasonable and the necessary dismissal procedures have been adhered to. Similarly, an employees failure to obey reasonable instructions that prevent the spread of swine flu which would naturally compromise the health and safety of other employees and other persons would also justify disciplinary action and dismissal. From a practical viewpoint an employer who believes an employee has typical flu like symptoms should insist that the employee go home, and get a diagnosis from the National Pandemic Flu Service using the website www.direct.gov.uk and click on the link, or telephone 0800 1513 100.
Can we dismiss or discipline an employee who refuses to travel abroad?
An employee dismissed for refusing to travel to a particular country would need to convince a tribunal that the request made by his or her employer to travel to that destination was unreasonable and put his or her health and safety at risk. In reaching their decision, the tribunal would consider all the circumstances of the case, including the availability of vaccinations, appropriate medical treatment and insurance cover, whether personal protection during the visit had been arranged and the level of advice and support provided by the employer to the employee prior to travel. Further, if the Foreign and Commonwealth Office, FCO, advises against non-essential travel to a particular country, an employee may be justified in refusing his or her employers request to travel there for work-related purposes. Details of FCO advice is available on its website (www.fco.gov.uk).
