Swine flu: contingency planning now may save your bacon

In this article...

• What are you planning for?  The risk for businesses
• Business continuity planning
• Human resources and employment law issues
• Action points for employers
• Staff absence
• The possible suspension of normal working practices: employment law issues
• Impact on business contracts
• And finally…

There has been much in the press over recent weeks about the new swine influenza strain, known as influenza A(H1N1) and the potential threat to the UK.  Sarah Lamont explores how an outbreak could affect your legal rights and responsibilities towards staff, customers and local and central government agencies and what you can do to prepare for a potential pandemic.

What are you planning for?  The risk for businesses

The authorities are saying that there is no immediate cause for alarm but this situation may quickly change.  The new virus might cause relatively mild illness in the UK, however employers should be aware that:

• Large numbers could be affected and a well contained outbreak in the UK in the next few weeks could be followed by a more serious second wave later.
• If there is a pandemic, sufferers will be expected to stay away from work to reduce infection risks.
• It is also possible that healthy people might be told to stay at home to limit the spread of infection or some people may have to stay at home to care for family members or children.
• If a very serious crisis develops, it is possible that the authorities may need to take emergency measures which may interfere with business operations.
• Even if a business is not especially badly hit, its suppliers or customers might be.

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Business continuity planning

In the event of a flu pandemic employers are advised to look at their business continuity planning, especially focussing on:

• How to cope with significant levels of employee absence.
• Reducing the risks of flu coming into and spreading within the workplace itself.
• Dealing with any sector-specific issues. For example, many public sector organisations may have special sensitivities, opportunities, legal concerns or duties.
• Dealing with the disruption of a key supplier or customer by an outbreak.
  Whilst many businesses will already have made continuity plans, these may need to be reviewed or tailored to the current threat. 

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Human resources and employment law issues

Employers need to focus on the following three areas when preparing for a potential pandemic:

• The duty to protect the health and safety of employees;
• How to deal with staff absence;
• The possible suspension of "normal" working practices and the impact that this may have on contracts of employment;

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Action points for employers

To deal with these issues, employers should:

• Communicate with staff about the current health risks ensuring systems of communication with staff are reliable.
• Review hygiene practices and improve these where necessary.
  Hygiene systems need to be good rather than adequate. Staff need to be encouraged to wash their hands with soap regularly and to carry tissues. The cleaning of hard surfaces, particularly phones and door handles, may have to be intensified.
• Have contingency plans for staff absence, identifying key staff.
  Employers should identify those staff with interchangeable skills who could stand in for one another in the event of illness as well as putting in place back-up from external contractors. Contact details of staff should be updated and emergency contact details of key staff should be circulated.
• Review relevant policies such as sickness, absence or dependant leave policies and consider how these might need to be modified.
  Employers will need to understand what statutory and contractual rights employees have in connection with sickness.
• Consider putting in place arrangements for home working or travel bans, should this become necessary.

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Staff absence

Staff absence may be high for the following reasons:

• Employee sickness and sick children or relatives.
  In the event of a pandemic, concerns about whether someone is a malingerer should give way to the very real need to prevent the spread of the disease.
• Employee fear
  A well-advertised sickness policy might help employers reassure healthy, but worried, staff that work is relatively safe.  For the time being, employees should be required to attend work as normal, unless there is a particular risk posed in that workplace; this is in line with Government advice to carry on life as normal while being aware of the risks. However, this may change and employers should take their cue from the Government.

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The possible suspension of normal working practices: employment law issues

• Normal practices concerning return to work policies, sick pay or dependant leave may need to be suspended. 
• Employers may need to be more generous about giving time off to employees caring for dependants.  The statutory rights to dependant leave are quite limited and employers may need to be more lenient if a pandemic develops.
• Employers and employees may come into conflict with one another on issues such as length of leave and whether such leave should be paid or unpaid. Employer discretion may have to come into play and whenever discretion is exercised, an employer is vulnerable to allegations of discrimination or breach of trust and confidence. The possible consequences of such disputes are beyond the scope of this article but HR departments should anticipate that such conflicts may arise.
• If a pandemic develops, it is likely that some employees will be required to work from home or to refrain from work for a period. Unless such things are provided for in the employment contract, imposing these changes will constitute a unilateral variation potentially giving rise to claims for constructive dismissal. There may be other measures which have to be taken which will impinge on the employee's strict contractual rights. While consultation with employees is normally called for in the event of contractual variation, this may not be feasible at very short notice. The possibility of these changes having to be imposed in future is something that could be drawn to the attention of employees now, thus avoiding scope for conflict. 

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Impact on business contracts

Employers should be aware that as a result of a flu pandemic, businesses may either be unable to fulfil their contractual obligations, or suffer loss because suppliers cannot fulfil theirs.  Normally a claim for damages for breach of contract would be a possible remedy.  However if it is clear that the contractual failure was caused by the flu pandemic a claim for breach may not be viable where there is an applicable force majeure clause in the contract or the judicial doctrine of frustration applies.  This would need to be looked at on a case by case basis.

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And finally…

You may wonder whether the business is insured against losses suffered by pandemic flu disruption but the Association of British Insurers say that most business interruption policies do not cover disruption caused by staff absence because generally they are only activated by damage to the insured’s property.  It is therefore even more important to get those business continuity plans in place!

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