Retail Motor Law

Q: What are the duties of an employer concerning the health and safety of staff?

A: An employer is under a general duty to provide a safe place and system of work for all employees. The duty can also arise in respect of contract workers and independent contractors. Employers are thereby required to take such steps as are reasonable to ensure that employees are protected from reasonably foreseeable dangers. That said, only reasonably foreseeable damage can give rise to liability and employers will not be held responsible where employees are injured at work as a result of a truly unforeseen event. However, a court might accept the argument that where a threat to employees’ health is readily apparent — such as during this flu pandemic — the employer’s duty to take steps to protect his employees is engaged.

The following are some of the measures an employer might consider putting in place:

 making employees aware of the relevant symptoms and ensuring that at the first sign of any such symptoms, employees stay at home

planning how to reintroduce into the office those employees who have been off sick or caring for unwell relatives

ensuring that strict personal hygiene guidelines (for example, using disposable tissues to control coughs and sneezes, disposing of them appropriately and washing hands before eating, etc) are put in place and adhered to

more frequent cleaning to minimise germs in all common work areas

providing anti-bacterial gel dispensers for staff to wash their hands with

making temporary changes to working practices, such as avoiding face-to-face meetings

identifying employees most at risk of infection and considering how these risks can be reduced, by, for example, the provision of face masks

considering whether it is feasible to offer employees relevant vaccinations, While an employer’s health and safety obligations would not extend to offering employees vaccinations against the virus, it may be a sensible option as part of a contingency plan to avoid excessive employee absence if costs permit.

Q:Are there special duties to protect vulnerable staff such as pregnant women or those who are HIV positive?

A: The Management of Health and Safety at Work Regulations 1999 SI 1999/3242 impose a duty on employers to conduct a risk assessment if working arrangements could involve risks to an expectant mother or her unborn baby. Although employers are under this general duty to assess risks to pregnant women, at current time of writing the Government has not issued specific advice regarding the safeguarding of such pregnant women. It would therefore be premature, for example, to instruct such women to work at home. This could change, though, as the flu spreads and if the number of deaths substantially increases.

An employer has a duty to make reasonable adjustments under the Disability Discrimination Act 1995 for those who are HIV positive or otherwise protected by disability discrimination law, and this may involve the employer taking special measures, such as allowing staff to work at home to minimise the possibility of being exposed to infection. In addition, staff with an underlying medical condition which is not strictly speaking a disability may require this kind of protection given that so far most of the deaths in the UK have involved people with underlying medical problems.

Q: How can we cope with high levels of employee absenteeism during the pandemic?

A: As well as the employees who fall sick, employers will need to take account of employees taking time off to care for sick dependants or because of school and nursery closures. A document published jointly by the Cabinet Office and the Department of Health, ‘A national framework for responding to an influenza pandemic’ (November 2007), sets out the Government’s response to such a situation. The Government bases its strategy on assumptions that 50 per cent of the workforce will require time off work at some point during a global flu