Blake Lapthorn solicitors' Employment law team held a seminar on sickness absence and swine flu during September 2009.

1. Thames Valley HR forum
- sickness absence and swine flu:
guidance for employers
Jim Whiter
Head of Employment law, Oxford
22 September 2009

2. Topics to be covered
Swine flu: guidance for employers
Recent developments
– Stringer -v- HMRC
– fit notes
Long-term ill health and dismissal – a reminder
Case study
© Blake Lapthorn 2009

3. Swine flu: health and safety
Employers’ common law duty: includes obligations to
provide a safe place of work and to protect
employees from unnecessary risk of injury
HSWA 1974:
– to secure the health, safety and welfare of persons at
work
– to protect persons against risks to health or safety
arising out of or in connection with the activities of
persons at work
Vulnerable staff: specific duty to assess risks of
pregnant women
© Blake Lapthorn 2009

4. Swine flu: employees having or suspected of having
the virus
They should not be at work
Paid in accordance with contract of employment
Possible extension of self certification scheme to 14
days?
Cannot insist on testing or vaccination.
NHS guidance: employees should come into work
unless they have flu like symptoms
© Blake Lapthorn 2009

5. Swine flu: effect on others in the workplace
Confidentiality? – should colleagues be told?
Covering absence
– homeworking?
– changing duties or hours – contractual issues
© Blake Lapthorn 2009

6. Swine flu: issues in relation to dependants
ERA 1996 : employees have the right to take a reasonable
amount of unpaid time off to care for or make arrangements in
respect of dependants.
Includes:
– when a dependant falls ill
– arranging for the provision of care for an ill dependant, or
– time off because of the unexpected disruption or termination
of arrangements for the care of a dependant
Note, therefore, child doesn’t have to be ill. Employee
could rely on this if a school or nursery is closed.
What’s reasonable? – case by case
© Blake Lapthorn 2009

7. Recent developments: Stringer -v- HMRC
Employees on long-term sickness absence continue
to accrue statutory annual leave
Contractual leave exceeding the statutory minimum
will not accrue
Payment in lieu when employment ends
Can you carry over unused holiday? ECJ says yes,
WTR says no
Review sickness policies. Employees should be
encouraged to take annual leave whilst sick
Particular problems in relation to PHI schemes
© Blake Lapthorn 2009

8. Recent developments: fit notes
Proposal from spring 2010
Three categories:
– fit for work
– not fit for work
– may be fit for some work now
May be fit for some work now – Doctor must describe
the ‘functional effects’ of the illness/condition. Doctor
can indicate appropriate arrangements to help the
employee back to work (a phased return; altered
hours; amended duties; and work place adaptations).
Doctor’s recommendations not binding
© Blake Lapthorn 2009

9. Managing long-term ill health
Potentially fair reason for dismissal
ACAS Code of Practice
General considerations
– ascertain true medical position
– consult
– consider alternatives
© Blake Lapthorn 2009

10. Managing long-term ill health
Disability discrimination:
– includes where employer fails without justification to
comply with duty to make reasonable adjustments
Other factors:
– nature, length and effect of illness
– part and future likely service
– important of job and feasibility of cover
– effect of absence on colleagues
– if worst health is require
– health and safety risk
– length of sick pay
© Blake Lapthorn 2009

11. If you have questions on this or other related topics, please contact:
jim.whiter@bllaw.co.uk
Blake Lapthorn is an English law firm regulated by the Solicitors
Regulation Authority under SRA number 448793 whose rules can be
accessed via www.sra.org.uk
This presentation is protected by copyright and is not a substitute for
detailed advice on specific transactions and problems and should not
be taken as providing legal advice on any of the topics discussed.
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http://www.bllaw.co.uk/about_us/a_to_z_of_partners.aspx or at any one
of our offices http://www.bllaw.co.uk/offices.
© Blake Lapthorn 2009