Thomas Ince: Ebola – what does it mean for employers?

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The spread of Ebola continues to dominate news headlines across the world, and whilst the UK government advises us that the risk of an outbreak in the UK remains low, HR professionals should nevertheless be considering now what action may need to be taken to protect globally mobile employees and businesses.

Foreign travel – to go or not to go?

Employers are quite rightly asking whether they should go ahead with certain business trips, particularly to countries in West Africa where Ebola may not yet have spread. It is important to first consider whether any trip is strictly necessary – are there other ways to conduct your business there, such as telephone conferencing?

Then, before deciding to go ahead with the trip, make sure managers have considered all up-to-date travel advice and official guidance on which countries are safe to travel to. Employers who ignore such advice and send individuals to countries where there is a significant Ebola risk (especially if the trip could have been easily avoided), may face negligence and/or health and safety-related claims should those individuals contract the disease. Remember that travel advice may change very quickly, and so you should be prepared to vary or cancel arrangements at the last minute. Speak to your insurers before making a final decision, otherwise any claims you do face may not be covered.

If, following insurance and government advice, the business chooses to go ahead with the trip, make sure that you continue to monitor such guidance for the whole time the employee is away. Have a plan in place to deal with emergencies – the employee will need to know what to do and who to contact if they think they may have been exposed to or caught the virus. Transport and communication infrastructures may quickly struggle to cope if the epidemic breaks out locally, and it is important to bear that in mind when planning how an employee may need to be evacuated.

Make sure your employees are fully prepared before they go abroad. They should be aware of how the disease is spread and be informed about good practice surrounding its avoidance (hygiene measures, for example). Remain in touch with employees whilst they are away, ensuring they are kept fully up-to-date with any changes to travel advice and continually monitoring their risk to exposure.

Requiring employees to stay at home – is there a risk?

Employers might be tempted to “quarantine” employees who have been at risk of catching the disease (those returning from affected countries, for example), by making them stay at home for the duration of the virus’ incubation period (up to around 21 days), or until the employee has provided a medical certificate confirming they are Ebola-free.

In most cases, providing the employee is paid during this enforced leave, you may not face any objection to this – not many employees would turn down a paid three-week absence from work!

Be careful though; it is vitally important to check the terms of the employment relationship. If you are not permitted by those terms to put an employee on enforced leave in this way, then doing so would constitute a breach of contract. The employee would be entitled to bring a legal claim in respect of such breach, or perhaps even resign and claim constructive dismissal. Whilst the actual risk of such claims from most employees may be low, be wary where an employee is able to argue that they are particularly prejudiced by the enforced leave: employees who are unable to earn commission or bonuses because they are forced to stay at home, for example, may well consider a claim worthwhile.

Even requiring an employee to work from home presents a technical legal risk. If the employment contract does not permit this, then doing so will constitute a breach of contract – albeit one which, in practice, may be unlikely to lead to claims.

A worthwhile step to consider now may therefore be to change terms and conditions to contractually enable you to put employees on enforced leave should you need to in the future. This could be done through changes to the employment contracts themselves, or perhaps by amending/implementing internal HR policies. There are inherent legal risks in making such changes, especially if agreement with the employees cannot be reached, and it is always best to seek legal advice before doing so to ensure these risks can be managed. Once the amended terms and conditions are in place, be sure to act reasonably when relying upon them.

Even if you do not change your terms and conditions, there are steps you can take to try and reduce the risk of claims. Make sure any exclusion from the office is for no longer than is strictly necessary. Also, rather than imposing a blanket ban on coming to the office on, say, any employees who have recently visited an affected country, consider employees on a case by case basis, always with an eye to consistency and non-discriminatory decision-making. Remember that unpaid enforced leave is very likely to lead to challenge (breach of contract, unlawful deduction from wages or constructive dismissal) and, whilst it may be possible to require employees to take annual leave (depending on your policies), consider the employee relations impact of this, and any possible claims for breach of trust and confidence.

Above all, remember your health and safety obligations and duty of care towards all employees: if there is a real risk that an employee is infectious and attending work, then the need to manage such a risk is likely to outweigh possible employment claims the business might face by requiring that employee to stay at home.

Dealing with employees who refuse to work

Of course, a significant concern for employers if an epidemic breaks out here may be getting employees to come to work, rather than keeping them away. And how do you deal with an employee who refuses to go on a business trip which you have deemed safe?

If there is any suspicion that an employee is merely malingering – using the situation to wrangle a few unauthorised days off work – then this can be treated as a disciplinary offence. Be sure to handle any disciplinary matters consistently and reasonably, following a fair procedure and complying with your own internal policies.

For employees who are refusing to come to work (or go on a business trip) because they are genuinely scared of catching the disease, disciplinary action and possible sanctions may again be appropriate. This will depend entirely on the circumstances, and so it will be vital to carry out a full investigation into the reasons for the absence and give the employee a full chance to respond before making any disciplinary decision. It will be particularly important to consider the current local emergency situation – imposing a disciplinary sanction on an employee who is simply following government advice by not coming to work is likely to be unreasonable. The risk of infection will be the most important consideration in the reasonableness or otherwise of the employee’s actions.

Tightening up your HR policies

As above, it is worth thinking in advance about what actions the business might need to take in respect of employees, should an Ebola outbreak occur in the UK, and then implementing or amending any HR policies or other contractual terms now to permit such actions.

You might, for example, want to implement a specific “Epidemic Policy”, dealing with employment issues in the case of an Ebola (or other disease) outbreak. This could set out what specific emergency leave entitlements might be available if an employee needs to care for sick dependents, for example, or what happens if there is an office closure. Thinking ahead and making sure that all possible scenarios are covered in such a policy is key, so that should emergency situations arise you are in the best possible position to deal with any issues consistently and with minimal risk.

Now might also be a good time to review your existing policies now: for example by ensuring that your sickness absence provisions are flexible enough, or your disciplinary policies expressly cover unauthorised absences from work. When reviewing all internal policies it is important to ensure they are properly consistent and complement one another. For example, by ensuring that a possible discretion to extend sick pay in the event of an epidemic, contained within an emergency “Epidemic Policy”, is not contradicted by the terms of the sickness absence policy itself.

Communication, communication, communication

In the event of an Ebola outbreak in the UK, effective and transparent communications between HR and employees will be vital to ensuring minimal disruption to the business. As an employer, your health and safety obligations and general duty of care require you to make employees aware of any health risk at work, and so you will need to be able to promptly inform your staff of any infectious outbreak in the workplace. Now is a good time to make sure your employee contact details are up to date so that this can be carried out effectively.

Make sure also that the business has an emergency business continuity plan in place so employees know what to do in case of possible workplace closures. Employees also need to know who they should contact if they are unable to attend work – bear in mind that if a significant number of employees are ill then normal notification procedures may need to be adapted.

Finally, and perhaps most importantly at this stage, beware of causing panic. It is important as a business to be prepared for any widespread Ebola outbreak which may arise, and it is equally important to make sure employees are aware of emergency procedures and health risks. Be careful to strike an appropriate balance between open communications and scaremongering though – we are told that the risk of an Ebola outbreak in the UK is small, and so it seems likely, at least for now, that undue employee panic may be a greater cause of workplace disruption than the disease itself.

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your situation and specific legal questions you have.

Thomas Ince is a partner and Deputy Practice Group Leader of the Reed Smith LLP Employment Group, with responsibility for Europe and the Middle East. Thomas can be contacted on +44 (0)20 3116 2998 or by email: [email protected]

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