During a flu pandemic, do employers have a duty to take special measures to protect those employees who are most at risk if they catch flu, such as pregnant employees or those with asthma?

During a flu pandemic, employers should check current guidance from the Department of Health or the relevant public health body on any health conditions that could cause a vulnerability to becoming seriously ill with flu. People at risk could include those with chronic lung, heart, liver or kidney disease; pregnant women; and older workers. Given the duty to ensure the health and safety of their employees, employers should consider measures to protect these employees from the risk of infection, for example by reassigning staff from high-risk work sites or locations.

Employers are also under special duties in relation to pregnant employees and disabled workers. In relation to pregnant employees, reg.16 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) imposes a duty on employers to conduct a risk assessment if working conditions could involve risk to a new or expectant mother or her baby. If the assessment reveals any risk to an employee, or her baby, the employer must follow a series of steps to ensure that she is not exposed to the risk or damaged by it. If the risk cannot be avoided, the employee's working conditions or hours of work should be altered. Where that is not feasible, she should be removed to another job or, as a last resort, suspended on full pay. However, where there is suitable alternative work within the company, the employee must be offered the work before being suspended on maternity grounds. Previous guidance from the NHS advised that the risk of infection can be reduced if pregnant women avoid unnecessary travel and crowds, therefore employers should also try to limit these aspects of a pregnant employee's role.

In relation to other vulnerable employees, such as those who are asthmatic, they may be protected by the disability provisions of the Equality Act 2010 if their condition satisfies the definition of "disability" in s.6. Where the Act applies, employers are under a duty to make reasonable adjustments, which may entail taking special measures to protect disabled staff. Examples of reasonable adjustments include assigning the disabled person to a different place of work and allowing homeworking.