Swine Flu – should employers worry about being sued?

23 07 2009

Thanks to Annabel Kaye of Irenicon (@AnnabelKaye) for bringing the article in MailOnline to my attention, via Twitter.  The full article can be found at http://www.dailymail.co.uk/news/articles-1201371/Bosses-risk-lawsuits-staff-swine-flu  .  Apparently, according to the Mail, employers need to be getting worried about the risk of being sued by employees who catch swine flu from doing their jobs .  The article quotes  lawyers and other commentators who  point out the risk of increased litigation.

Whilst some employees may try it on and threaten their employers with claims in most cases they won’t get off the ground and, like Annabel, I don’t buy the need to panic. In her tweet she made the very cogent point that the employee would have difficulty in proving where they contracted swine flu.  For an employer to be at risk of being successfully sued for personal injury arising out of contracting swine flu at work, the employee will have to jump through the following hoops;

  1.  The employer was in breach of their duty of care to the employee in  not taking reasonable steps to reduce the risk of contracting the virus
  2. The employer’s breach of duty caused the employee to have swine flu
  3. As a result the employee suffered personal injury

 

Whilst there are undoubtedly steps that can be taken to minimise the risks of it spreading (like good hygiene practices) etc   the main reason why employers won’t be taken to the cleaners on this one is because of (2) above – causation.  How is an employee to prove that they contracted the virus at work as opposed to on the train/tube/bus or the gym or from the kids (or the kids’ friends) or the other parents waiting at the school gates, shopping mall etc?  The list of potential sources is endless.  Just because a customer/colleague might sneeze in your general direction (try saying with a French accent for the full Monty Python effect) will not be enough to persuade a wizened County Court District Judge to enter judgment.   

I am also sceptical about what steps an employer can take to reduce the risk – providing soap/antibacterial gel in offices and cleaning phones and keyboards are about the only steps I think an employer can reasonably be expected to take.  Getting staff to work from home might not be possible – for how long?  I’m all for flexible working practices where reasonably required but how long do you send staff home for – months?  Separating desks – so what?  (why do I keep thinking of the Titanic’s deck chairs?) ; switch off the air-con? Now you’re talking, let’s hope we don’t have a heat wave.  A court asked to consider the issue of breach of duty (1) above will want to consider what steps an employer could reasonably have taken to reduce the risk. That won’t include taking steps that will shut the employer’s business down.

 Finally, even if an employee could overcome the first two hurdles, the amount of compensation they would receive for an unpleasant illness that lasted a week/ten days would not be great, probably not more than £1000, which is the minimum limit for Claimants recovering their legal costs plus compensation in the County Court, below that the cases aren’t financially viable for lawyers to get involved. If someone developed secondary problems consequent upon the swine flu then the level of compensation might be higher, but it is all very tenuous.  For this reason the no win no fee merchants won’t get involved.   If a privately paying client came to me and said they wanted to sue their employer because they got swine flu I would tell them to think again, and carefully.

I don’t want to seem flippant about swine flu, or underplay the risk it poses.  It is clearly, for some people, a very nasty, indeed fatal, illness.  But, as Corporal Jones used to say “Don’t panic” and articles such as this one in MailOnline only serve to whip up anxiety, but that’s what the Daily Mail is for, isn’t it?

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