One of our employees has recently returned from a holiday in Turkey.  He came into work for less than a day, but had to go home because he was suffering from flu.  A number of other employees have subsequently taken time off with flu-like symptoms, but others are coming into work unwell.  Whilst I am confident that we do not have a case of avian flu on our hands, I am concerned that it will spread throughout the firm and we will be severely short-staffed.  In order to limit the chances of this happening, I want to send any employee home who appears to be unwell.  Is there anything wrong with taking this approach?

Yours

Dickie Bird

 

Dear Mr Bird

You are right to be concerned about the impact flu could have on your workforce.  Analysis published by the Department of Health indicate that a flu pandemic will cause more than 10% of the population to lose working days and assumes that 25% of the UK workforce will take between 5 and 8 working days off over a three month period.  Absenteeism in the private sector will double.  HSBC has forecast that workplace absenteeism could be as high as 50% of its staff during the pandemic. 

Given that the Department of Health recommend that anyone catching flu stay at home and rest, it would seem prudent to ask employees displaying flu-like symptoms to remain away from work.  You also have a duty to provide a safe place of work for your other employees.  Arguably, by exposing employees to flu through not requiring sick employees to stay at home, you are in breach of your health and safety obligations.  In addition, having a sick employee at work is likely to make him/her more unwell.  Failure to encourage the employee to go home could be a breach of the duties owed to that employee.

However, unless you have the contractual right to require an employee not to attend the office (i.e. through a “garden leave” clause), you cannot force an employee to stay at home without risking a claim for breach of contract.  If your employees are unpaid during periods of sickness absence, they are likely to resist any attempt to send them home.  You should weigh up the risks of an employee bringing such a claim with the risk to other staff and potential damage to your business by not acting quickly.

Whilst it seems unlikely that an employee would bring such a claim (especially since an employee has a duty to have regard for his own and his colleagues’ heath and safety) you should use this as an opportunity to update your sickness and absence policy appropriately.

Another way of preventing the spread of flu is to encourage employees to work from home.  Where this is possible, you should bear in mind that you remain responsible for the health and safety of your workers, including those working from home.  You need to satisfy yourself that employees are working in appropriate and safe conditions at home.  This obligation arises both under the employer’s common law duty of care and under health and safety legislation which lays down general principles to be followed by employers governing the health and safety at work of employees, including the general duty on an employer to provide a safe place of work, and safe system of work.  A higher level of risk assessment is required for new and expectant mothers.

In practice, we recommend that you sit down and discuss with employees why they should not be in the office.  If they seem unwilling to go home, you could ask them to see a doctor in the hope that they are certified unwell.  If the employee continues to resist and you are forced to send them home against their wishes, you should consider paying them during their sickness absence.  Such measures should reduce the chances of an employee successfully bringing a claim against you.

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