Key employment issues in a pandemic

The current expert opinion is that a swine flu pandemic will truly hit in the autumn. This will have significant implications for employers who should now start making contingency plans.

The previous article in this series highlighted the importance of measures to prevent the spread of the virus through the workforce, as well as employee communications policies. Please click here for our first article in the series.

In this article we look at what employers should consider when dealing with absences and adapting working arrangements to ensure the business can continue to function efficiently with a reduced workforce.

Absences during a pandemic will include genuine sickness absences, the taking of time off to look after dependants and absences for other reasons such as sheer reluctance to attend or travel to work.

Employers will need to review their sickness absence and sick pay policies to ensure these are appropriate. They should prepare for significant levels of sickness absence of at least 5-7 days per person. One priority will be to keep the genuinely ill away from work and changes in company policy may have to be made; for example employees should not return until it is safe for them to do so, rather than when they feel better. If attendance at GP’s surgeries is restricted sickness may have to be self certified and employers should review their policies so that abuses can be managed.

Other absence issues may arise when employees take time off to care for sick dependants. Employers who currently pay for this may decide to review their policies so that payment is limited to a certain number of days. The statutory right to take time off extends to a ‘reasonable period’, which is likely to be longer than employers are currently used to. In light of this, employers should review their holiday policies to see if these allow them to require employees to take holiday at the employer’s direction.

During a pandemic it is also likely that employees will be absent for a variety of other reasons, such as a reluctance to attend work in case they are infected. Actively insisting the sick stay at home should encourage the healthy to come to work, but employers will need to be sensitive to genuine concerns and may be able to agree different working arrangements, such as working from home. However any unreasonable refusal to work may lead to disciplinary action.

Another challenge for employers will be keeping services operating ‘as usual’ with a reduced workforce. Employers are likely to cancel or rearrange planned employee absence, redeploy (and retrain) staff, seek more overtime and allow annual leave to be carried over to the next year. Employers may need to introduce more flexible working, such as changing working times. Employers must remain conscious of the difficulties of unilaterally imposing contractual changes and all changes should be undertaken within a framework of effective and, where possible, early consultation. Employers will have to decide whether there is sufficient flexibility within the employment contract to make the required changes or whether consent or other measures are necessary. The unilateral imposition of contractual changes is risky and can lead to claims for breach of contract and unfair dismissal.

UK employers may wish to consider temporarily covering roles with overseas personnel who can be redeployed from group operations. Aside from possible quarantine controls which may impact on freedom of movement in a full scale pandemic, the UK entity must ensure that any foreign employees have the necessary permission to work in the UK. Business visitors cannot undertake productive work in the UK without the employer running the risk of civil and criminal penalties and immediate redeployment of staff will not always be feasible.

A full-scale pandemic will challenge all employers. Now is the time to anticipate your business needs so that employment issues can be resolved smoothly.

For information on our key contacts, please see our UK Pandemic Advice Core Team contact sheet.