Who will pay if you fall sick?

The Sars outbreak in the Far East has raised a number of legal issues for employers and travel firms. Penny Lewis considers how far, in cases of infection, they can be held accountable

Which is more dangerous – travel to Iraq or to certain Far East destinations? While the Foreign and Commonwealth Office recommends that all travel to the former is avoided, a less stringent warning is given in respect of travel to the latter. The FCO reports that the chief medical officer "strongly advised the United Kingdom public to defer travel to Hong Kong or Guandong province in southern China for the time being due to the outbreak of Severe Acute Respiratory Syndrome".

According to the WHO, there was a total of 3,235 cases of Sars in the period from 1 November 2002 to 15 April this year. During this six-month period, the potentially fatal strain of pneumonia has ricocheted from the Far East to Canada and has now arrived here. In London, one patient was successfully treated at the Royal Free Hospital, where the individual recovered and has been discharged. Another was admitted to Northwick Park Hospital in Harrow. Reflecting the gravity with which this "jet set" illness is being taken, the WHO is to hold a two-day global scientific meeting on Sars in Geneva in June.

There were 20 million flu fatalities after the First World War. It is too early to predict the impact of Sars, but it is plain that unless effective measures are taken to identify and prevent transmission, a global epidemic could ensue. Meanwhile, its fast-spreading nature raises complex legal issues. With air travel commonplace, what legal duties are there upon employers to respond to the threat of the transmission of the disease?

Many employers will be reviewing travel plans. Stephen Isaacs, the managing director of an international distribution company, says, "Any plans to visit our new business partner in Hong Kong have been put on indefinite hold. The risk to the staff is too great and it is doubtful that critical illness or death in service would cover us."

Tim Oliver, a partner at London-based Plexus Law says, "Generally speaking an English employer will not be liable where an employee is injured overseas. The extent of their duty of care depends on what is reasonable in all the circumstances, and there should be due regard to the place where they are being asked to work, including the nature of the work and of the building, the experience of the employee and the degree of control that the employer can exert over the environment."

With regard to employees working abroad for long periods, Mr Oliver points out that an employer's "duty is generally met by inspecting the site and ensuring that the occupiers were responsible and competent. If an individual were being sent to an area where there were known terrorist threats, then in the event of injury it would be difficult to argue that the employer was not aware of those risks and therefore to avoid a liability." Journalists are probably in a different category, as they have generally volunteered to travel to front-line positions. Certainly, it is hard to imagine any insurance company covering them.

The employment specialist Barry Stanton of Boyes Turner predicts, "Employers will need to consider what they should do in relation to employees who are already working in a Sars-affected region on a permanent basis. It is not inconceivable, if the outbreak becomes widespread, that employees will want to leave." In these circumstances, he believes that "requiring employees to remain could be a breach of the employer's duty to the employee".

Many larger law firms have a Hong Kong presence, and will doubtless be monitoring developments carefully. Herbert Smith, for example, has a local office staffed by 200 people. In the wake of the Sars outbreak it has stopped all business travel to Hong Kong and southern China unless it is "absolutely necessary". Anyone travelling from those areas is asked to wait 10 days before entering another Herbert Smith office. The overseas office is also taking precautions to prevent risk of infection to staff in the office and "has procedures in place to deal with the very small possibility that a member of staff may become ill with Sars". Helpfully, they direct staff to personnel or the Department of Health website for more information.

Mr Oliver also suggests that the small print in insurance policies providing cover for business and social purposes is checked carefully. He warns that "travel policies tend to be very tightly worded". Understandably, there may be a reluctance to travel to destinations where infection is possible, but whether cancellation is covered "is a moot point". In general, travellers who contract illness on holiday may be able to "recover damages from the tour operator if it is an organised holiday and the travel-package regulations in this country require the tour operator to compensate the traveller subject to any remedy that they themselves may be able to seek from the supplier of the defective services, such as the hotel". This would not apply to an independently organised excursion.

Aside from the risks of contracting Sars overseas, some people will be worried about exposure to carriers at of work. The barrister Christopher Russell, the head of the employers liability team at the London chambers, 2 Temple Gardens, says, "The starting point for employers is that they are under an obligation to take reasonable care to safeguard the health and safety of their employees." Stanton confirms, "The duty is underpinned by health and safety legislation and various EC directives."

Summarising the position, Mr Russell explains that "the employer must take reasonable care of his employees' health and safety. He must carry out a risk assessment based on the knowledge available to him and on informed advice from experts such as doctors, the Health and Safety Executive and the Foreign Office. His response must be proportionate – the greater the risk of infection and the more serious the consequences, the greater is his obligation to take steps to safeguard his employees."

Containment of the highly infectious virus could be hampered by the fact that the symptoms are chameleon-like, mirroring those of a common cold – a high fever, dry cough, shortness of breath or breathing difficulties. However, Mr Russell comments that if the employer is "aware that an employee has been away on holiday or in a place where there is a higher incidence of the problem," then it "might be appropriate to require him to sit out the incubation period". Accordingly, "If there are reasonable grounds to believe that an employee has or appears to have the symptoms of Sars, that is, more than a cold, he would probably have to direct him to his GP to rely on his expertise." In other words, until the ambiguity as to his condition is resolved he "should exclude that person from the workplace".

Russell stresses that "conduct has to be proportionate to the risk of harm. There are obvious practical limits to what they have to do." With infectious diseases, it is unrealistic to subject staff to detailed questioning about their domestic circumstances, travel or social arrangements that may bring them into contact with carriers of the disease. Russell says, "You can't expect an employer to close down his business to prevent people coming into contact with other people, nor to direct employees not to go to Hong Kong on holiday." It is noteworthy here that employees do not have an automatic right to work at home. Stanton doubts, unless there is an outbreak as in Hong Kong, that an employee would be able to claim entitlement to do so here.

Schools face a similar dilemma, with many children returning from the Easter break. Mr Oliver says, "Schools have a responsibility to ensure that children in their care are as safe as reasonably practicable. They stand in loco parentis. Any prudent school faced with an outbreak of Sars or any other virulent viral infection should first of all identify those children potentially at risk, and then take steps to isolate them, either within or from the school. If they do nothing and allow a child to mix with fellow pupils, it is difficult to imagine how they would avoid a finding of breach of duty."