Prepare for impact

It is increasingly difficult to ignore the possibility of a flu pandemic, caused by the possible mutation of the H5N1 flu virus. Such a pandemic would have far-reaching effects on employers in the building services sector, and these will be exacerbated if they do not prepare for the impact of high levels of employee absences. A worst case scenario expects staff absenteeism to peak at 15% at one time, although it is more likely that 25% of workers will take between five and eight days off over a period of three to four months due to sickness and caring responsibilities. However, there are steps that employers can take to minimise the impact of this on their business, and below I have addressed some common concerns.

Will liquidated damages clauses in construction contracts still bite if a large proportion of the workforce is absent through sickness?

Delay clauses in standard form construction contracts fall away in very limited circumstances. Most standard form contracts contain a frustration and/or force majeure clause, but these are unlikely to be exercisable in the event of a flu pandemic. Standard form contracts normally allow for extensions of time in some circumstances, which would reduce or avoid the exercise of a liquidated damages clause, but again, a flu pandemic is unlikely to be sufficient for the exercise of this type of provision.

Does an employer's duty of care to its staff extend to offering inoculation against bird flu?

Health and safety law requires an employer to take such steps as are reasonably necessary to ensure the safety of his employees. This does not go so far as to require an employer to offer inoculation against an illness such as bird flu (an exception to this may be if exposure to such a disease was a necessary consequence of employment). However, if vaccination is available, it may be sensible for employers to offer inoculation as a part of their business contingency planning, provided that the costs of doing so do not outweigh the benefits.

Are an employee's fears of contracting bird flu sufficient grounds for a refusal to attend work?

Fear of contracting an illness is not a sufficient reason for absence, and an employer faced with a refusal would be entitled to consider disciplinary action, including possibly refusing to pay the employee (on the basis that the employee is refusing to perform his or her part of the contract). However, employers should note the recent amendment to the Statutory Sick Pay (SSP) Regulations 1982, which states that if an employee is "excluded, abstains or [is] prevented from working" by reason of his being a carrier of or having been in contact with a case of a "relevant disease", then he or she is deemed incapable of working for the purposes of the payment of SSP. Obviously, any employees to which this provision applies may not be disciplined for their refusal to attend work.

Most standard forms contain a frustration and/or force majeure clause, but you are unlikely to be able to exercise them in the event of a flu pandemic

If employee absences result in a downturn in business, can staff be laid off?

A downturn in business may have an impact on the amount of staff required, and as such, an employer would be entitled to make staff redundant. Whatever the circumstances of the redundancy, the employer must carry out a proper selection and consultation procedure, including compliance with the Statutory Dismissal Procedures, in order to avoid the risk of an unfair dismissal claim.

What can companies do to avoid disruption to their business?

Employers should make plans to run their businesses with minimum staffing and should consider retraining or redeploying staff to areas where they do not usually work. It may also be necessary to take on additional staff on a temporary basis, so appropriate paperwork, such as temporary contracts, should be put in place so that it is ready to use should the need arise.

They should also look at introducing measures such as flexible working in order to ensure that as many employees as possible can continue to work, and consider providing accommodation for staff in the event of transport disruption or movement restriction.