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August 2009: Swine flu – your responsibilities as an employer

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Human Law Ezine - August 2009

Swine flu – your responsibilities and how to avoid difficulties dealing with malingering employees 

In our last ezine (Managing both the legal and human side of disputes) we dealt with the difficult challenge employer’s face when dealing with employee disputes, to balance the interests of both the individual and the business. With the continuing swine flu pandemic businesses continue to face a challenge to keep the business going whilst also caring for their staff.

Hopefully your business isn’t suffering as badly as Thomas Cook who last week reported swine flu had cost their business £12.6 million. But there can be few businesses that haven’t had staff calling in with that dreaded news that they have, or should we say, are suspected of having, swine flu.

And the worst is yet to come potentially. The Business Advisory Network for Flu (BANF) is estimating that around 30 per cent of the public will be infected during the first wave from August to November. During the peak weeks of late August to early September they are predicting employee absence rates for illness (themselves or looking after ill children) may reach 12 per cent of the workforce in addition to normal holiday absence. Although the latest Health Protection Agency estimates suggest a drop in cases of swine flu in England in the first week of August illness continues to create problems in the workplace.

Under current regulation the employee does not need to provide a doctor’s sick note for the first seven days they are sick, effectively certifying themselves. With the Government and Doctors alike trying to prevent the spread, calls have been made to extend this period to 14 days. Whilst this might ease the strain on the health service it puts employers in a potentially very difficult situation.

There are two main aspects to this problem for most organisations.

Business as usual, in spite of swine flu

The first is perhaps the easiest to tackle – getting the work done with a reduced workforce. You may be able to address this through overtime working, using temporary staff or asking part-time workers to do additional hours.

But do be careful – you need to ask rather than insist on things like overtime and not discriminate against those who won’t or can’t ‘help you out’. Unwittingly you can create other legal problems or resentment if you get someone to fill in. For example if you ask someone to do extra long hours this can fuel resentment from others who were not selected for overtime and if anyone feels pressurised can even lead to allegations of bullying. Alternatively if someone fills in for a longer period then the person who is sick you may be gearing up to a potential constructive dismissal claim. So take care and if necessary take legal advice.

Minimising spread and tackling malingering

Another, perhaps more difficult problem to tackle is balancing your responsibility as a caring employer to empathise with employees who are ill and try to minimise the risk of infection in the workplace with the need to tackle apparent malingering by staff using swine flu as an excuse for unauthorised absence.

So what can employers do?

  1. The more your employees know about how to prevent infection, the more resilient your business will be. It's important that you and your employees continue to do everything you can to stop swine flu from spreading by following the Governments advice. A look at the NHS Pandemic Flu Guidance for Business will help. It provides a useful model for risk assessment as well as mitigating actions you can take. Issuing hygiene guidance such as washing hands regularly, covering sneezes and coughs, and eating well to maintain a healthy immune system. These measures can help prevent many infectious diseases other than swine flu.

  2. Keep information flowing but don’t go overboard – as long as you take sensible steps there will be little legal exposure. As a consequence do not go overboard in referring to swine flu as you may be tacitly encouraging staff to take time off as they will be scared to go into the office.

  3. If you think your employee is taking an “illegal sickie,” bite your tongue and do not say the first thing that comes into your mind. In particular be very careful in how you communicate by email or text message as once there is a formal record of you (perhaps) unjustly criticising your staff it’s difficult to defend yourself. Don’t be tempted for example to discuss their absence with other members of staff and certainly don’t share your belief that they are not being genuine.

  4. If you do plan to tackle the subject with a member of staff, just check your own emotions and do not walk into a situation where you have not considered the outcome that you are seeking. If you think the absence is doubtful the chances are that you are annoyed. Just watch your temper and make sure you are not entering a potential conflict with fire in your belly.

  5. See things from the employees view point – in my experience employers can sometimes appear unsympathetic to an employee during a sickness absence and can create the perception that they are gearing up to take some form of disciplinary action even if they are not so minded. The very exercise in listening to the employee could pay dividends in terms of loyalty and hard work in the future, even if it is a doubtful sickness.

  6. Take good notes – if you really are concerned that an employee is using swine flu as an excuse for not coming to work and you think you might need to go down the disciplinary route keep a record of everything that happens. Your notes may be a God send later if the matter becomes legal later. It is some much easier if you have an accurate record of what was said.

The advice from Ben Willmott, senior public policy advisor at the Chartered Institute of Personnel and Development (CIPD), seems sound "… employers should formulate clear advice for staff on the symptoms of the virus and the importance of staying at home and seeking medical advice at the earliest opportunity." This just needs to be balanced with advice to managers and supervisors to not jump to conclusions or react too quickly if they think an employee is taking advantage of the situation.

For advice on tackling serious cases of unauthorised absence whilst avoiding large scale conflict contact Justin Patten of Human Law Mediation on 0844 800 3249.

Further reading:

Five tips for settling an employment dispute

 
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Human Law Mediation is being increasingly called upon to advise employees on compromise agreements. This is a service we are happy to offer, either face to face or via email and telephone. Contact Human Law Mediation on 0844 800 3249 or email Justin Patten via the website.
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