We all expect employers to act in good faith and follow good human resources practices to avoid workplace issues or problems. But sometimes when issues such as a potential outbreak of a deadly virus occurs, what can employers do to protect their workers?
There is much more to learn about the Novel Coronavirus, but the World Health Organisation has already issued an advisory that includes some very basic protective measures:
- Wash your hands frequently;
- Practice respiratory management (when coughing and sneezing, cover mouth and nose with flexed tissue – and discard the tissue immediately after use into a closed bin and clean your hands);
- Social distancing – adopting the metre rule (as a parent I like this one); and
- If you have a fever, cough and difficulty breathing, seek medical help early.
However, employers should be thinking beyond these basic measures for their organisation. While most workers are unlikely to be at significant risk of catching the virus, some industries may be more at risk (i.e. workers in tourism, travel, healthcare, boarder protection and some retail industries) where there could be an elevated risk of coming into contact with infected travellers from abroad. In these industries an employer should be considering measures for protecting workers from exposure (depending on the type of work being performed and exposure risk), including: providing clear information on safe hygiene practices, having steps to limit the spread of illness such as isolation of workers who feel unwell, and evaluating the risks to workers who are required to travel as part of their job. Where appropriate, an employer could consider offering personal protective equipment and respiratory protection to prevent exposure.
Employers could also consider introducing administrative controls such as varying an employee's contract of employment by changing shift patterns or splitting shifts so that employees don't have contact with other shifts to avoid the exposure risk. Ordinarily the risk of unilaterally changing an employment agreement would constitute a repudiatory breach of contract entitling an employee to claim a personal grievance. That principle is well established. However, in an old case (Hale 1990) the Court of Appeal considered the doctrine of management prerogative. The doctrine has been used in some cases as a basis for arguing that breaches of contract based on commercial necessity may be justified. Even though commercial necessity may exist because of the Novel Coronavirus, that does not mean employers have a licence to make wholesale changes to an employee's contract on the basis of management prerogative. The courts have certainly recognised an employer's right to manage its business as it sees fit. The key issue is in assessing how to reconcile these two principles, and determine whether it may be legitimate to rely on the right to manage and make changes to an employee's terms and conditions of employment to prevent illness spreading. The starting point is to check the applicable employment agreements and consider the rationale to make or implement changes to employee terms and conditions. Health and safety, or a potential outbreak of a deadly virus, is a good reason to introduce a change or even a temporary change. It is difficult to imagine there will be great resistance to employers implementing temporary changes to protect their workforce. However, an employer is still required to act reasonably and fairly before implementing any change and this will involve consultation. Consultation in this context should be about the impact of any change including a temporary change to terms and conditions of employment.
This latest potential outbreak is a timely reminder for employers to review their policy guidelines and risk management plans, and consider what steps they can reasonably take to ensure their business continuity and the health and safety of their workforce. The World Health Organisation is certainly taking the Novel Coronavirus very seriously and so should employers and employees.
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