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Stay home if you're ill
2:20pm Thursday 14th May 2009 in Legal
A dreadful epidemic is sweeping the land. Workers are powerless before it. It affects everyone, rich and poor, and entire families are inconvenienced as a result.
I am not talking directly about swine flu but the culture of ‘presenteeism’.
This is where employees feel obliged to drag themselves from their sick beds, because the culture dictates they would have to be knocking at death’s door before calling in sick.
It is in this way that viruses spread and more people suffer than would otherwise have been necessary.
What if the virus is a little more than just your common cold? What if a co-worker struggles in with swine flu, you become infected, a lengthy absence from work follows and financial loss results.
Could you seek to blame the co-worker who should have stayed at home?
In reality, an individual co-worker is rarely worth pursuing through the courts, most of us technically being what are known in the law as ‘men of straw’ — or two months’ worth of pay cheques away from the street.
So what about the employers who cultivate this atmosphere? Could there be the basis of a claim against them?
Are they negligent in making their employees feel obliged to clock in, even when feeling distinctly off? If an illness could be proved to have been contracted at work, could you ask your employer to ‘cough up’?
Dealing first with the question of proving how and where the swine flu was contracted, it would not be too hard to convince a judge that ‘on the balance of probabilities’, which is the standard of proof required in the civil courts, the virus must have been contracted at work.
As long as family and friends are clear, and there is no dramatic localised outbreak, then the link could be established.
But what about negligence? Could the court be persuaded the employer had failed in their duty towards staff as a whole by insisting that one sick individual struggle in regardless?
This is really where the claim would fail — quite apart from considerations of value and whether the matter was worth pursuing financially — as providing evidence of negligence would be very difficult.
Unless the employer had foolishly made their demands on paper or verbally before witnesses, then the usual internal paperwork would, on disclosure, consist of standard terms and conditions relating to sick leave and pay.
The short answer therefore is no. But there are other very good reasons for employers to question their workplace cultures.
UK businesses lose more than £13.2bn each year through employee sickness. The cost of absence quickly spirals if other employees become infected, and any internal occupational health department will wish to concentrate on reducing absence levels.
If early assessment, diagnosis and medical intervention aids early return to work for the individual, then it will also have the additional benefit of avoiding the spread of disease within the company, meaning less sickness absence across the board.
The HSE website contains Workplace Guidance on Pandemic Flu which states that while it is first and foremost a public health matter, there are clear health and safety requirements to protect workers who come into contact with infectious micro-organisms such as the flu virus.
The relevant regulations (COSHH — the Control of Substances Hazardous to Heath Regulations 2002) are intended to apply to workers who may come across a virus directly in the course of their work, for example those who carry out research on it, or may expect to be exposed in the course of their work, such as healthcare workers caring for infectious patients.
The regulations would not form the basis of a claim in an ordinary office or factory situation where exposure to the virus could not reasonably be anticipated.
In this sense, COSHH does not cover employees who happen to be exposed to a disease that is in general circulation.
But there may be indirect health and safety consequences of a swine flu pandemic, should it lead to depleted staff resources due to widespread sickness absence.
Overstretched workers trying to cover for absent colleagues are themselves placed at risk. The HSE’s advice to employers is ‘to encourage each individual employee to adopt a common sense approach.’ If you are feeling unwell with flu-like symptoms — stay at home. Along with this advice would have to come a reassurance that such sickness absence would not be misconstrued, or used later as a weapon with which to beat the employee, in later unrelated disciplinary proceedings, or when considering criteria for redundancy selection.
These are hard economic times and it may not be enough for employers to deny the existence of a culture of ‘presenteeism’ — they must take specific steps to reassure ill workers that their absence is desired in the circumstances, and will not be punished.