"We're trying to hold back a dam that is leaking and we're trying to stop it from bursting" Bharat Pankania - public health lecturer at Exeter University.
While we obviously all hope that the spread of the Covid-19 Coronavirus will be contained as much as possible, responsible employers will already have started thinking about how to mitigate business disruption and risks to health arising from a widespread outbreak in the UK. The situation is an uncertain but potentially fast changing one and some advance planning would therefore seem to be sensible, preferably without creating undue alarm.
At this stage there appears to be a realistic possibility that, within a few weeks, there will be a Coronavirus epidemic in the UK, which may only peak after about three months. It is said that infection rates could get as high as 60% of the population, with around a quarter of those suffering severe symptoms and perhaps 2% of those who become infected requiring hospital treatment. If the disease spreads in anything like this way transport infrastructure may be disrupted and it is likely that some schools will close. Very material dislocation of normal working patterns is therefore a distinct possibility.
It would be unwise to assume that these fears are exaggerated merely because other high profile diseases over the years have not taken hold in the way they might have done (the confirmed cases and number of deaths already far exceed those said to have been caused by SARS, for instance). Failure to take sensible and timely precautions to prepare for the worst could expose an organisation to claims and result in financial losses which could have been avoided.
Relevant obligations
Employment contracts contain implied obligations to take reasonable care of the health and safety of employees and of trust and confidence. Breaches of these terms could lead to employees resigning and claiming constructive dismissal. Contracts will often also contain express contractual terms requiring staff members to ensure their own health and safety and that of their colleagues. Employees are required to comply with reasonable management instructions, including those relating to proportionate hygiene measures which the organisation is proposing to introduce.
Employers also owe a common law duty to take reasonable care of the safety of their employees, which includes providing them with a safe place of work. Otherwise, if the loss or damage was reasonably foreseeable, the employee can bring a personal injury claim relying on the employer's negligence. Similar duties are owed to contractors and others with whom the organisation conducts business.
Finally, businesses are subject to similar statutory obligations under the Health and Safety at Work Act 1974 and associated legislation, breaches of which can lead to criminal prosecution.
Some practical questions which may arise if the disease takes hold
Can I discipline or dismiss someone who is not ill but is unreasonably refusing to come to work?
Yes, potentially, although whether this is the best approach to take will depend on the circumstances. You will also need to take into account any condition which might be contributing to increased (or even apparently irrational) anxiety.
Can I stop paying the employee in this situation?
This may well be the better option. Even if the employee has an entitlement to contractual sick pay, this will not apply if the employee is not unwell. However, the position will be more complicated if the person is suffering from anxiety caused by the Coronavirus situation and is entitled to contractual sick pay.
What should I do if an employee comes into work after being in contact with an infected person?
Initially, clear instructions should be given to staff members not to do this and to notify management by telephone if they have come into contact with someone who is infected. Anyone who ignores this instruction can be asked to work from home or go home. You may well have to pay the employee in this situation, but this will probably be better than risking other staff being infected.
Can I impose new safety rules on members of staff and do I need to consult with them about these?
There is arguably a responsibility to impose new safety rules on staff even at this stage. There almost certainly will be a duty to do so if the number of confirmed cases in the UK increases dramatically.
This type of planning is best done in consultation with all the managers within the organisation, as each team is likely to work differently and to have different needs.
What can I do if an employee ignores those rules?
You may be entitled to take disciplinary action in such a situation. Whether you warn the employee informally first will depend on the circumstances.
Can I change people's working hours to reduce the number of employees who are at work at the same time?
This may be a sensible precaution to take if it reduces the risk of staff being infected. It would probably need to be done in consultation with staff and by agreement, except to the extent that the changes to proposed working hours were marginal.
If the revenue of the business is affected, can I lay people off until things get better?
This will probably depend on what your contracts say. However, a suitably worded disaster recovery plan can give an employer this right, as it can include provisions about the circumstances in which the organisation proposes to stop paying employees or to reduce their salaries in an emergency in order to avoid having to make redundancies and/or closing down.
Steps which employers may wish to consider taking
Although the steps that it is appropriate to take will vary according to the nature of the business, the workforce, etc. these are some of the precautions and preparatory steps employers may wish to consider taking:
- putting in place a formal disaster recovery plan
- instructing staff to work from home if their temperature exceeds a certain level or if they are experiencing flu-like symptoms (or to stay home without working in these circumstances even if there is no work they can do from home)
- requiring that anyone who does have the virus remains at home until medically cleared to return
- instructing any employees who work with someone who has contracted the virus to work from home (or remain at home) for a period
- putting arrangements in place to make it easier for staff to work from home, without having to commute, if necessary for extended periods and involving many more people at a time than usual (including purchasing extra laptop computers and mobile telephones, increasing the number of remote access user licences, ensuring that telephone calls can be diverted to home telephones or mobiles, etc.)
- relaxing cyber security policies to permit the use of home personal computers, provided confidentiality is observed and the computers have up to date anti-virus software
- identifying which hard copy information might need to be accessed and by whom and scanning anything which might need to be worked on from home
- temporarily suspending client meetings and conducting meetings by Skype, FaceTime or telephone instead
- increasing the availability of sanitary wipes and antiseptic handwash and the frequency of sanitary cleaning of kitchen and toilet facilities
- postponing client functions and staff social events
Many of these preparatory steps will require careful handling in order to ensure that employees understand why what is being proposed is necessary, proportionate and in the common interest. Advice should be taken where necessary in relation to any more complex questions or issues.