What do you do if you fear an employee has Ebola?
Over the past couple of weeks it has been reported that security guard Sam Ogunnoiki was refused the right to return to work after a holiday to Nigeria. Mr Ogunnoiki was reportedly asked to remain away from work for three weeks and not to return until certified fit by his doctor, even though at the time Nigeria had been declared an Ebola free zone. He didn’t get paid for his absence as he was on a zero hours contract. What is perhaps difficult to understand is reports that his wife, who had been in contact with him, was reported to have been allowed to continue to work at the same workplace.
Mr Ogunnoike’s employer, Stout Security, has justified its actions on the basis that it was responding to requests from Mr Ogunnoiki’s colleagues and to a client’s instruction.
Employer’s obligations
Employers are under an obligation to provide a safe working environment for all of their employees. With this in mind, even though the government have emphasised that the risk of Ebola in the UK is low, many employers are drafting policies to prepare for this risk. Policies should be justified and applied consistently. Consider whether to consult with workforce or unions on the preventative measures to be adopted.
There is no hard and fast rule but consider:
- Providing guidance and keeping employees up-to-date with Ebola risks and symptoms
- Requiring employees to notify you if they have visited an infected area or come into contact with anyone with Ebola symptoms (you should make it clear that employees will not be stigmatised)
- If employees coming back from infected areas display signs of the virus that the business may provide that they are immediately sent to the hospital and remain off work until certified fit to return
- That the policy applies to all who work in the building, so will equally apply to contractors, agency staff and others.
Examining Stout Security’s approach
There is a question mark over whether businesses can impose their own “incubation period” as Stout Security did and enforce a period away from the work place for those who have returned from a risk zone.
An employer owes an obligation of trust and confidence to all employees including the employee who is thought to be at risk. Additionally, the Equality Act 2010 prevents race discrimination which includes colour, nationality and ethnic or national origins. Discrimination because of association with a disability can also be protected in certain scenarios.
An employee will have a claim for direct discrimination if they are treated less favourably than others because of their race. For example, if an employer was to ask only African employees to justify their holiday plans this may be direct discrimination, as would a decision to send home a Liberian employee with a fever assuming they have Ebola where the same assumption would not be made for an English employee. For this reason any policy should be linked to travel to the affected countries and employers should avoid making assumptions about risks. Businesses should also train their staff to be tolerant to avoid being vicariously liable for any racist comments or acts.
Additionally, a policy based on travel to certain countries could be indirectly discriminatory e.g. Liberian employees are more likely to visit Liberia and be affected by the policy. Employers will therefore need to justify the policy and it will have to be proportionate. It will be more difficult to justify a policy where the employee has not visited an infected country unless based on medical advice and given the current situation certainly should not apply to visits to “Africa” as Stout’s policy allegedly did.
It is also important to consider the terms of the contract. If a staff member is on a “zero hours” contract with no requirement for the employer to offer work, then contractually they can be asked to stay at home. In other cases there is unlikely to be a breach of contract if the employee is paid during the period they are required to remain off work, but it will make the employers case stronger if there is a policy providing for this and a contractual right is necessary if employees are required to remain off work without pay. Paying an employee while away from work/on sick leave will also assist with justification. If an alternative option is available, such as requiring the employee to work from home or another isolated location or asking for a certificate of clearance obtained at the airport, this may be more proportionate.
Summary
It may of course come to the point where employers decide to prioritise health and safety above the risk of discrimination claims. For now, employers should keep abreast of the situation and ensure their approach is well thought through to avoid the risk of claims.
Laura is a Senior Associate in the Employment team at leading law firm Wedlake Bell, supporting her clients with a range of complex HR issues, including how to navigate tricky issues related to stress at work. Laura has considerable experience in dealing with contentious matters and her practice in this area focuses on complex discrimination claims as well as competition and confidentiality issues. Laura regularly advises on complex TUPE matters. Laura read law at the University of Leicester and following this trained at Wedlake Bell, qualifying into the Employment team in September 2010. Laura is a member of the ELA and regularly holds training sessions and seminars for her clients.
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