UK: Swine Flu - Advice For Employers

Last Updated: 18 August 2009
Article by Melissa Paz and Christina Morton

The swine flu pandemic has the potential to be highly disruptive to organisations in all sectors. Although numbers infected in England have risen in the last few months, the government expects a big surge of cases in the autumn and estimates that, at the pandemic's peak, 15 - 20% of the workforce could be absent from work.

There is now a large amount of information and advice available from health and governmental sources on how to prepare for and respond to the situation.
To help employers and HR professionals draw up their own list of priorities for addressing the pandemic, the Withers employment group has produced a brief summary of some of the legal challenges which pandemic swine flu may present for organisations, particularly in their capacity as employers. It also provides some brief guidance on how to address these issues and provides links to some of the most important sources of guidance that the government and NHS have produced.

Business continuity planning

The adverse effects on an organisation from a pandemic may come from a range of sources, particularly large numbers of simultaneous staff absences, absences amongst key personnel, reductions in customer demand and difficulties amongst suppliers in meeting normal service standards. Some of these will lie outside the control of the organisation but, in relation to those matters within their control, organisations need to make contingency plans, or tailor those already in place.

Practical steps might include:

  • identifying a 'pandemic coordinator' and / or team responsible for response planning;
  • identifying the critical activities undertaken by the business and those employees, suppliers etc who support them;
  • considering how those activities might be maintained in the event of significant absences (e.g. recruiting an additional pool of workers, or training staff to perform different functions); and
  • establishing an emergency communications plan. 

The government has developed achecklist to assist organisations with their business continuity planning.


None of the steps an employer takes are likely to be effective if they are not adequately communicated. Once a contingency plan has been drawn up, an employer needs to communicate it clearly to the whole workforce, but in particular to the employees who are likely to be called upon to implement it.

Employers also need to communicate with staff about the health risks, summarising up-to-date government guidance (e.g.Introductory Advice to Staff on Planning for Pandemic Influenza) and providing the details of where to obtain further advice (e.g. the National Pandemic Flu Service).

Employers should remind employees of the content of any internal policies that are likely to be relevant during a pandemic and in particular those on sickness absence, absences due to transport disruption and absences for the purpose of caring for dependents.

Whilst it is important not to cause alarm, employees are more likely to pay attention to information of this nature when they know something is a threat.

Employers should also consider who in the organisation should communicate this information, in order to ensure that it is listened to and treated with sufficient seriousness. Employees may be more likely to take seriously communications from senior managers or those regarded as spokespersons for the organisation. This will be particularly important if there is ordinarily a relatively relaxed attitude to health and safety in the workplace.

Health and safety

Employers need to take certain practical health and safety measures to try to minimise the level staff absences. These steps will also be needed to reduce the risk that employees try to bring claims for personal injury, on the basis that an illness was caused or exacerbated by the employer not meeting minimum standards for health and safety at work or by its breaching its duty of care towards its employees.

Hence employers should:

  • ensure that workplace hygiene standards are as high as possible (e.g. encouraging staff to wash their hands regularly and to carry tissues; installing antiseptic hand-gel dispensers in bathrooms and kitchen areas; introducing more regular and thorough cleaning routines);
  • carry out risk assessments to assess any factors that make the employer particularly vulnerable (e.g. high level of contact between people). A model for risk assessment can be found in the NHS 'Pandemic Flu: Guidance for Businesses' booklet. Employers may decide to introduce alternative ways of working (e.g. home working) to reduce the risk of cross-infection. Some larger organisations have purchased Tamiflu, face masks and gloves for this purpose;
  • ask employees to stay at home if they have flu-like symptoms and make it clear that infected employees should not attend work until they are fully recovered. Employers with a culture of staff attending work when they are ill will need to encourage their workforce to change their approach. This approach may need to be specifically endorsed by senior management if it is to be effective, particularly if it is a departure from normal workplace culture;
  • consider imposing quarantine periods during which employees who have had flu may not return, as well as imposing quarantine periods on those who have come into close contact with those who have been infected; and
  • remind employees that everyone has a responsibility under the health and safety policy both to themselves and to their colleagues and that they are therefore expected to comply with the rules and guidelines issued by the employer. An employer will need to judge whether it needs to reinforce this message with the threat of disciplinary proceedings. This will be appropriate in some workplaces but in others may cause employees to "switch off" and hence undermine the importance of the message. 

Pregnant and vulnerable employees

At the time of writing, the government has indicated that pregnant women should "carry on life as normal" but, if the level of cases rises significantly in the autumn, it may advise pregnant women and those with weakened immune systems to stay away from work for several weeks. Employers should give serious consideration to requests from such staff to work from home, or to commute outside rush hour to avoid crowds.

Employers have an ongoing obligation to carry out risk assessments for pregnant employees and should keep these under review. A sudden surge in the number of flu cases in the workplace would be an identifiable risk to which employer would be expected to respond, taking into account government and medical guidance available at the time.

Absenteeism and malingerers

It is likely that the pandemic will cause fear amongst workers and some people will choose to stay away from work, seeing this as the safest option. Whilst this will inevitably reduce productivity, employers may risk employees resigning (and potentially claiming constructive dismissal) if they are forced to attend work in these circumstances.

An employer would have various options in dealing with an employee who is genuinely afraid to attend work because of the risk of infection, but the precise approach the employer takes will be determined by the amount of flexibility towards employees that is compatible with keeping the organisation operational. Options include:

  • enabling employees to work from home (e.g. providing laptops) although employers should not overlook the need to carry out risk assessments if an employee is home-based;
  • showing flexibility about start and finishing times to enable employees to travel outside peak commuter periods;
  • rearranging the working environment so that employees have less contact with each other;
  • offering unpaid leave to those who are not sick but would prefer to remain at home. This is likely to be a better option than disciplinary action which may prove to be counter-productive and is likely to be very difficult to administer, particularly if there are a number of such cases.

Unfortunately, it is also likely that some employees will use swine flu as an opportunity to malinger and seek paid sick leave without proper cause. The government is currently discussing the option of a temporary extension to the period of self-certification from 7 to 14 days. If this happens it may well tempt some employees to take time off unnecessarily. Employers may have provisions in their contracts that enable them to send an employee for an independent medical assessment, which will be helpful in cases where there is doubt about an employee's true condition.

In the usual way, an employer with evidence that an absent employee is, in fact, perfectly healthy would have grounds to take disciplinary action - although such cases will be rare. Nevertheless, managers should ensure that employees understand that disciplinary action will be taken if they believe a member of staff is malingering. In a genuine situation of pandemic employers may find that their normal processes for handling difficult situations come under strain, for example because of reduced resources at management level or in the HR department. Employers should think carefully before cutting corners on proper procedures nevertheless and should take external advice before taking any steps if it seems that a particular situation could become contentious.

Children and other dependants

In addition to their own illnesses, employees may be affected by the illness of children or other dependants, nursery or school closures and sickness absence of normal carers. All these eventualities may present employers with an additional pressure on staff attendance. Employers may need to be more generous about giving time off to employees caring for dependants than they otherwise would be. Statutory rights are limited and are likely to be insufficient in the context of a swine flu pandemic, since alternative carers may be difficult to find. Nevertheless employers will need to put some limits on what they consider to be acceptable periods of absence, bearing in mind health advice and the possibility that some employees may have to deal with unexpected complications or emergencies.

A balance will need to be struck between setting reasonable expectations and relaxing these in cases involving genuine emergency or difficulty. Employers also need to try to be fair and consistent amongst employees to avoid grievances and allegations of breach of trust and confidence or discrimination.
Employers will also need to consider whether any extensions to permitted absence will be paid or unpaid.

If policies are to be temporarily relaxed or amended, employers need to communicate this fact clearly along with a statement that normal policies will be reinstated once the pandemic is over.

Changes to terms and conditions

In addition to entailing a need to review policies, the pandemic could mean employers need to impose changes to some contractual terms and conditions, at least on a temporary basis. This may be necessary where:

  • employees who have not already done so might be asked to opt out of the Working Time Regulations to cover for sick colleagues;
  • employees might be forced to stay away from work against their will (e.g. in quarantine);
  • employees might be asked to take on duties outside their normal roles or to undertake training to enable them to perform new tasks;
  • employees may have to work to new shift patterns or shortened rest breaks or may have to postpone holidays; or
  • employers may take the view that their absence management procedures are not robust enough and need to be tightened.

These measures could lead to breach of contract claims if not handled appropriately, but are far less likely to do so if employers bear in mind the following points:

  • good communication will be critical to obtaining agreement to a temporary change of terms and conditions;
  • if there is an established employee consultation body in place such as a works council or a recognised trade union, their remit is likely to include discussion of matters such as contingency planning and emergency measures. Any proposals should be raised with them as early as possible as it may become impractical to consult with them basis during an actual crisis and their involvement is likely to lead to higher level of employee co-operation;
  • employees should be told the reason for any proposed change and the likely duration at the earliest opportunity, to enable them to plan. If possible, employers should seek voluntary co-operation. If the issue is covering for colleagues, those with dependants or other responsibilities outside of work may have less flexibility to provide cover than those without. Employers may need to consider how to circumvent any feelings of resentment this may cause, perhaps by offering time off in lieu at a later stage once any crisis has passed or additional payment if that is financially feasible for the organisation;
  • forcing people to accept changes, by threatening disciplinary measures or dismissing people and rehiring them on new terms, should be a very last resort, but may be needed if the organisation is in real difficulty.


Employees' normal travel arrangements may be disrupted during a pandemic if public transport is not running to normal full timetables. Employers will need to establish a policy for dealing with employees' difficulties and will need strike a balance between tolerating unavoidable disruption and stating clearly an expectation that employees will not take advantage of the situation. Again communication will be vital.

Businesses with international interests who regularly send their staff overseas should consider:

  • whether on a temporary basis they should curtail or cease business travel to reduce risks (for example by using video conference technology as an alternative to business travel);
  • whether there are particular countries or locations that employees should avoid for health reasons (taking into account current government advice); and
  • whether any special measures are needed to protect those who continue to travel (e.g. ensuring suitable medical cover if local medical cover might be unavailable or difficult to obtain); and
  • whether their travel insurance arrangements contain specific obligations such as a requirement to comply with current government guidance on overseas travel during a pandemic. Failure to comply with these stipulations would be likely to invalidate the cover under the policy.

Some employers have organised temporary accommodation for key workers near the workplace in anticipation of disruption to local travel to / from work.

FSA-regulated firms

Firms regulated by the FSA are required to take reasonable care to organise and control their affairs responsibly and effectively, with adequate risk management systems. The FSA published a statement on 1 May 2009 urging firms to assess their business continuity plans owing to swine flu, and to consider the steps they may need to take to address this. It is also contacting "high impact" firms (e.g. infrastructure providers) to establish whether swine flu is affecting any aspects of their business.

Regulated firms should be reviewing and testing the effectiveness of their business continuity plans, and keeping appropriate records so they are able to demonstrate this to the FSA. The FSA has directed such firms to a report on the lessons learned from a 2006 business continuity exercise it carried out, based on a pandemic scenario. Firms should also consider the additional information on theUK Financial Sector Continuity website.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions