Swine flu: an employer's liability?

Employers who do not adequately protect staff from swine flu could face costly lawsuits of tens of thousands of pounds from claimants, if they are found to have breached their duty of care as outlined in the Health & Safety Act, warns James Wilders of law firm Dickinson Dees.

With swine flu cases in the UK mounting daily, firms which typically do not take extra precautions during the flu season could be found to be inadequately protecting employees.

EN asked Wilders to provide answers to questions many employers are asking:

Is my business liable if someone falls ill or dies due to contracting swine flu at work?

“Employer liability in the event of a death requires proof that the employer has not fulfilled its duty of care. If you can show you have taken reasonable steps to provide a safe working environment, you will not be liable, either in criminal or civil proceedings. These do not need to be complex and would include ensuring rooms are properly ventilated, having soap and hygiene gel available, communicating company policy on illness and, above all, ensuring people with symptoms are sent home promptly.”

Can my business claim for loss of earnings on my insurance due to swine flu?

“Loss of earnings policies vary wildly, particularly for larger companies where insurance is often bespoke. Check with your insurance provider or broker to see if you are covered against such ‘Acts of God’. In my experience, however, this would fall outside most standard policies.”

Employees have taken to wearing face masks. Can I stop them?

“There is little medical evidence that face masks protect the wearer. If masks interfere with their job function the employer can quite reasonably require staff not to wear them.”

Can employees refuse to come to work for fear of catching swine flu?

“Employees can refuse to come to work if they have reasonable grounds to think that by doing so they would be at risk of contracting swine flu. If you have made attempts to minimise risk but the employee still refuses to come to work without good reason, you may pursue disciplinary action against the employee. However, reasonable persuasion should be the first recourse.”

Typical issues and how to address them may include:

Packed commute on public transport greatly exposing employee to infection

Ultimately the employer is not responsible for how employees get to work, but wherever possible should offer to vary commuting hours and provide remote working to reduce risk to the employee.

Employee’s job requires a lot of face-to-face contact, e.g. checkout assistant

In the case of checkout assistants, cleansing gel could be provided at each checkout to reduce the risk of contracting the virus from germs on goods and money. It would be reasonable for people in such jobs to request sick customers to leave.

Sudden increase in cases among co-workers

Ensure the working environment is cleaned extra thoroughly or provide a new working environment. Isolate other locations where infection could have occurred, such as staff after-work drinks or recent conferences.

“In cases such as these, the employer can show it has tried to minimise the risk to the employee. However, asking people who are exhibiting symptoms to stay at work or come in would certainly be deemed risky practice under the Health & Safety Act.”

Below James provides a checklist of actions employers and HR professionals should be taking to safeguard against legal action and also to maintain company productivity during the flu season:

Get your plan across

“Any uncertainty regarding the actions employers or employees should take in the event of a swine flu case must be removed to prevent accidental mis-handling of the situation. Employees need to know well in advance who they should contact if they even think they have caught it, how long they should stay away from work and what to do if their case is confirmed.”

Ensure all reasonable care has been taken

“Evidence of heightened sanitary measures is an excellent protection for the employer. Install soapless hand-washing equipment in workplaces to reduce the risk of virus transmission.

“Give employees all the personal space you can from your floor plan and ensure ventilation is adequate throughout the premises, particularly in meeting rooms.”

Start coordinated remote working

“Remote working is one of the best forms of protecting staff. If it works for particular job functions, employers should make it a priority to use it.”
“If necessary, develop a rota for those wishing to work remotely to minimise the amount of people in the office and any potential to transmit the virus through travelling to work.”

He concludes:

“Clearly each case will be judged differently and potential payouts would vary considerably. Ultimately it will be up to the employee to establish whether an employer is responsible for their having contracted the virus. By taking the necessary precautions well in advance, employers will protect themselves and their businesses from workplace disruption and the worry of lawsuits which could occur as a result.”

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