Swine flu and employment rights problem page

Colleagues with swine flu

Dear Rodrigo
A girl at work has shown signs of having the swine flu but hasn’t been in touch with NHS Direct. She hasn’t taken time off work in fear of discipline from our employer plus she doesn’t get sick pay. Is she and our employer right to allow her to work along side her colleagues and customers knowing it could be passed on?

Rodrigo says:
I do not think that your boss and the ‘girl at work’ are behaving responsibly! If you have reason to believe that it would be difficult to persuade your boss to send her home or take other measures to prevent infection, then perhaps first either you or one of your colleagues could have friendly chat with her. You could suggest that she contacts the NHS Direct helpline or her doctor for confidential advice about her illness and being at work.

If she has swine flu, she would have a statutory right to take time off work on the grounds of health and safety and your boss has been advised by the Government to send affected workers home. Your boss would be acting unlawfully if he ‘punished’ her. She could raise a grievance and / or make a complaint to an Employment Tribunal (see the links on the right hand side.)

Nevertheless, she is worried about being disciplined for taking time off work due to illness. Your boss would be wrong to treat genuine sickness as a disciplinary issue! However, it is customary for employers to monitor sickness absence and hold ‘return to work’ interviews. And if you are off sick long-term, your boss can seek to end your employment on the grounds that you are not capable of working.

I advise anyone, whose boss is threatening to use or already using formal procedures, to approach their trade union or staff association for help. If you belong to one, you benefit from the legal right to be accompanied by a recognised representative to formal meetings with your boss.

If your boss has no sick pay scheme, she would still qualify for Statutory Sick Pay (SSP) after three days off. She could also apply for Housing Benefit and Council Tax Benefit (HB / CTB). If she has an unemployed partner and is in receipt of Statutory Sick Pay, she could claim Income Support (IS) and receive an additional £21.80p per week as well as maximum HB / CTB.

See the links on the right hand side for more information about this and where to get advice and help.

Confidentiality

Dear Rodrigo
Please can you tell me if it is ok for the HR department at your work to divulge to other members of staff that you have 'suspected swine flu'. I have been told that I may have it, but it's not confirmed and today I found out that the HR manager has emailed my colleagues with this information.

Rodrigo says:
If you give your employer medical information about yourself in confidence, it should not usually be disclosed to anyone else without your consent. Therefore, the HR manager has breached confidentiality and perhaps your data protection rights (see the link on the right hand side).

The HR manager may have believed that the duty to maintain health and safety was more important than respecting your confidentiality. But I suggest it was unnecessary to identify you to work colleagues. After all you are only suspected of having swine flu. It would have been wiser instead to generally issue and repeat information and workplace guidance about hygiene and swine flu. And you could have been sent home for the time being until given the all clear.

You may want to take out a grievance (make a complaint) against the HR manager. If you do, be clear from the outset about what you want from your boss. For example, will an apology be enough? Or have you suffered significant distress and are looking for more? You could also give your boss a 'data subject notice' asking him to stop disclosing medical information about you. If that does not work, you could refer the matter to the Information Commissioner and ultimately go to court, if needs be.

See the links on the right hand side for more information about all this and where to get advice and help.

Pregnancy

Dear Rodrigo

I'm pregnant and have to travel to work on packed public transport. Can I ask to work from home instead?

Rodrigo says:
You are worried about any risks there might be, in particular to your unborn child, from travelling on overcrowded public transport. You think asking your boss to allow you to work from home offers a solution. Before doing so, I suggest you check the latest advice on swine flu and pregnant workers available from the Directgov website - see the link on the right hand side.

Your boss has a duty to ensure health and safety. You are in a vulnerable category. So your boss must take into account the fact you are pregnant and assess all risks including swine flu when considering if changes need to be made to when, where and how you work.

But if it is not possible or practical to work from home all of the time, there is another option! You are probably working standard 9am to 5pm office hours, Mondays to Fridays. Your boss could allow you to start and end your shifts earlier or later. So you could avoid travelling in the rush hour. If they refuse, seek further advice and information about flexible working rights. As you are pregnant, you would be in a strong position to start a grievance. For more information on grievances see the Advicenow guide How to use the grievance procedure.

If there any difficulties with the pregnancy and you are finding it hard to work, you should see your doctor. They could provide your boss with pregnancy related medical grounds for suspending you from work on full pay, if it is not possible to provide you with suitable alternative working arrangements.

Sick pay

Dear Rodrigo
I've been sent home from work because I have flu-like symptoms but I’m in my probationary period and don’t get paid for sick leave. I can’t afford to be off - can they make me?

Rodrigo says:
Your boss probably believes they are acting in line with health advice issued by the Government and their obligation to maintain health and safety. However, it seems that they have hastily ordered you to go home without properly considering the negative consequences for your finances.

From what you say, it seems that anyone who has worked for your boss beyond the probationary stage, would get paid sick leave if sent home. You want to work but unfortunately under the terms of your contract, your boss does not have to pay you your normal wages.

However, after the first three days of sick leave, you are entitled to Statutory Sick Pay (SSP) currently payable through your employer at a rate of £79.15 per week. And if you have an unemployed partner, they could temporarily claim Job Seekers Allowance (JSA) and obtain a small top-up payment of £21.80 per week (couples are entitled to £100.95 per week) whilst you are off sick. But if you have dependent children living with you, then you could temporarily claim an Income Support (IS) top-up of £21.80 instead. Anyone receiving JSA or IS gets maximum Housing Benefit (if you are renting) and full Council Tax Benefit (if you are a Council Taxpayer).

You should ask your boss to allow you to return to work at the earliest opportunity. As soon as you are beginning to feel better, I suggest you visit your doctor to obtain confirmation that you are fit to return to work and you are not contagious. Then if your boss does not allow you to return to work, you should seek advice about making a grievance (a formal complaint).

Even though it's swine flu?

Dear Rodrigo
My husband has caught swine flu. He is very worried as he doesn't get paid for being off work and if he is of for a week it's a lot of money to lose. Will he lose pay for the days he is off even though it's swine flu he has got?

Rodrigo says:
If your husband doesn't usually get paid when he is off sick, then I'm afraid that having swine flu probably won't make any difference. But he should check whether or not he should usually get sick pay. For example, many employers give staff a certain number of days paid sick leave per year. It's up to your employer whether to do this. Your husband should have a look in his employment contract or staff handbook to find out what he is entitled to.

If you husband doesn't get this kind of company sick pay, he should still get statutory sick pay. See the link on the right hand side for more information.

Other benefits?

Dear Rodrigo
I have been off work for the past week with swine flu. I have had to return to work as I can not afford to be off any longer. I am only entitled to two days sick pay. Is there anything I can claim to get my other days back? I live on my own and am private renting.

Rodrigo says:
It seems from your question that you were off work for a whole week and your boss only pays Statutory Sick Pay. So you are obviously struggling to make ends meet. And probably paying the rent and Council Tax are the biggest burdens. Therefore, I suggest you contact the benefits department at your local council and get a Housing Benefit and Council Tax Benefit claim form (HCTB1).

Housing benefit is paid weekly, Mondays to Sundays. Council Tax Benefit is paid on a daily basis. You will have to ask for your claim to be backdated to when you stopped working and the fact you were ill is a good excuse for not claiming earlier. You will also need to inform them that you are back at work now. But if your income is low enough, you may still be entitled to some Housing Benefit or Council Tax Benefit. The minimum weekly amount of Housing Benefit that can be paid is 50p.

See the links on the right hand side for more information.

At-risk groups

Dear Rodrigo
I have asthma which means I'm in one of the at-risk groups. Two people at work have children with swine flu. I'm nervous about catching it - can I ask the boss to ask them to stay at home?

Rodrigo says:
It is known that two work colleagues have come into direct and close contact with swine flu. There is a risk of catching swine flu if you have to work closely with these two colleagues. Therefore, you could ask your boss to send them home until any risk of contagiousness has passed. If your boss disagrees, then you could alternatively ask to work from home in line with current Government guidance for people who are more vulnerable.

Chronic asthma is classified as a disability. Therefore your boss has a legal duty to make 'reasonable adjustments' (this means they have to take reasonable steps to reduce any disadvantage you might experience because of your disability). However, they might decide, if possible, to keep contact with these two colleagues and other employees to a minimal level.

In any event, if your boss fails to take satisfactory steps to protect your health and safety, you could start a grievance. But before doing so, get specialist advice.

Sick note

Dear Rodrigo
I've just returned to work after having swine flu. I didn't go to the doctor's because when I rang NHS Direct they said not to. Now my boss is insisting that I have a sick note to prove that I was ill. What can I do?

Rodrigo says:
What you will need to do will depend on how long you were off sick. It is true people are being advised not visit their GP unless they belong to a 'vulnerable group'. So your boss should be reminded about that!

The general rule about proving you are or have been sick is that you do not have to provide your boss with a certificate signed by your doctor (sick note) for the first seven days you are off. However, you may need to fill out a 'self-certificate'. Your employer may have a form for doing this. Or you could fill out a form called a SC2, which you can get from your doctor's surgery or from the HM Revenue and Customs website - see the link on the right hand side.

But once you have been off work sick for more than seven days, you will need to ask your doctor for a sick note to give to your employer.

Lone parents

Dear Rodrigo
I have an 11 year old who has swine flu. I am a lone parent who works part time. I don't usually get paid for time off I take when my son is ill. I would really like to know if there may be any way to change this.

Rodrigo says:
Your boss is giving you unpaid time off work to look after your son when he is ill. He is obliged to give you a ‘reasonable’ amount because of the ‘Time off for Dependents’ Regulations - see the Advicenow guide for working parents for more information. But these do not require your boss to pay you.

However, some employers (usually larger ones or those in the public sector) do give their workers special (additional) paid leave in certain circumstances. I suggest that you could check that out by looking at your employment contract or staff handbook. As you are keen to see current entitlements improved, you could try lobbying for changes through a Trade Union or pressure group such Gingerbread.

You should be able to claim Income Support temporarily whilst you have to take unpaid time off work. You can do this by telephoning Jobcentreplus on 0800 055 6688, Mondays to Fridays 8am to 6pm. That would also 'passport' you to being able to claim Housing Benefit if you pay rent and Council Tax Benefit.

See the links on the right hand side for more information.

22nd October 2009