By Lisa Rix - (Updated 13 January 2021)
Now that the nation is firmly placed in “Lockdown 3.0”, individuals are only able to leave their home for work if they “cannot reasonably work from home”. Although this might seem the same as previous guidance (which was worded as either, “cannot work from home” or “cannot effectively work from home”), there are new restrictions for clinically extremely vulnerable individuals and the risk has increased for all employees as the cases and deaths sadly continue to be reported at their highest to date.
However, with the promise of the ongoing vaccine roll-out, businesses will again be planning for the reopening of workplaces as soon as possible, again with the additional social distancing and hygiene requirements.
In the circumstances where an employer has made their workplace “COVID-19 secure”, how do they deal with employees who refuse to return to the workplace? In theory, employers may be able to discipline such employees, stop paying them, or even dismiss them, but what risks does this throw up? Employers should always try to resolve a refusal to attend the workplace informally first, but this overview highlights some of the risks to navigate if you do have to take more formal action such as withholding pay, disciplining or dismissing the employee.
We highlight questions as *UPDATED* where the answers have substantively changed since our last FAQs.
1) *UPDATED* Employees generally
All employees, regardless of whether they are in a vulnerable category or not and regardless of their length of service, could potentially have the following claims open to them:
2) *UPDATED* “Clinically extremely vulnerable” (i.e. shielding) employees
During Lockdown 3.0, clinically extremely vulnerable employees have been instructed to “shield” again, which from an employment perspective includes the instruction “If you cannot work from home, then you should not attend work”. Such employees may be eligible for statutory sick pay, Employment Support Allowance or Universal Credit. Employers should also consider placing such employees on furlough for the time being (if an available option).
Clinically extremely vulnerable employees are highly likely to qualify as disabled for employment law purposes. Therefore, in addition to the risks above, disciplining or not paying these employees for not returning to the workplace carries a high risk of disability discrimination (with such claims requiring no qualifying service and having uncapped compensation). Also, it is more likely that the claims considered above become more likely to be made out: e.g., the employee is more likely to reasonably believe there is a serious and imminent danger to their health, and an employer instruction for them to return to the workplace is more likely to be unreasonable etc.
Generally, if an employer follows all the government guidance on re-opening their business after Lockdown 3.0 (including ensuring their workplace is COVID secure), this will really lower the risk when requiring clinically extremely vulnerable employees to return to work, both in respect of disability discrimination claims and health and safety claims, as long as shielding has once again been paused or has ended.
Additionally, clinically extremely vulnerable employees are likely to have the right to reasonable adjustments being made to overcome any substantial disadvantage they are placed in (if they qualify as disabled for employment law purposes). Employers should therefore consider what kinds of adjustments might be appropriate for their staff and speak to them about their concerns and how they might be overcome.
3) *UPDATED* Employees who have a household member who is clinically extremely vulnerable (i.e. who is shielding)
These employees may potentially have claims of associative direct discrimination on the grounds of disability, and/or claims of harassment or victimisation in relation to their clinically extremely vulnerable household member. Additionally, this may mean that an employer’s instruction to return to work is less likely to be reasonable and that the employee is more likely to have a reasonable belief that returning to the workplace presents a serious and imminent danger.
However, the government guidance is those living in a household with a clinically extremely vulnerable person who are not clinically extremely vulnerable themselves should continue to attend work if they cannot reasonably work from home.
4) Employees who are “clinically vulnerable”
Employers should remember that it is not only those who are shielding who may be “disabled” for the purposes of equality law (and that some of the clinically extremely vulnerable were omitted from the government’s shielding list in any event). Therefore, it is likely that the same increased risks of claims which apply for those who are shielding (in question 3 above) also apply to this category of employees (although possibly to a lesser extent).
5) Pregnant employees
Employers have additional duties to protect the health and safety of new and expectant mothers in the workplace, including:
Pregnant women have also been identified as clinically vulnerable in the government’s social distancing guidance, so where the nature of the employee's role means that they cannot work from home and there is no suitable alternative work available that they could do from home, the employer should consider suspending the employee on full pay. Failure to do this means a pregnant woman could claim for compensation from an employment tribunal.
Pregnant women may also have a pregnancy discrimination claim if they are treated unfavourably for seeking to take maternity leave, and guidance from the Equality and Human Rights Commission (EHRC) provides that requiring pregnant employees to continue to work in front line roles could also amount to indirect sex discrimination.
As pregnant employees are deemed to start their maternity leave early if the employee is absent from work "wholly or partly because of pregnancy" after the beginning of the fourth week before the expected week of childbirth (EWC) it is possible that any suspension on full pay will start the employee's maternity leave if there is less than four weeks before their EWC. However, to otherwise attempt to force an employee to start her maternity leave earlier would be discrimination on grounds of pregnancy and maternity.
6) Employees who have a household member who is "clinically vulnerable"
As above, employers should remember that it is not only those who are clinically extremely vulnerable who may be “disabled” for the purposes of equality law (and that some of the clinically extremely vulnerable were omitted from the government’s list in any event). Therefore, it is likely that the same increased risks of claims which apply for those living with clinically extremely vulnerable household members also apply to this category of employees (although possibly to a lesser extent).
7) *UPDATED* Employees with childcaring responsibilities while schools and nurseries remain closed/partly closed
With schools and nurseries again only open for vulnerable children and the children of critical workers, parents are faced with the difficulties of balancing their care responsibilities with work. Until schools and nurseries are re-opened, employees may struggle to return to the workplace for any periods during which their children are required to stay at home.
Such employees could be furloughed while the scheme remains, and/or they may be able to request statutory time off for dependants (although this may become harder where the disruption to childcare is not unexpected) and/or parental leave (depending on their length of service), each of which may be unpaid depending on the employer’s policy.
If employers nevertheless push such employees to return to the workplace and penalise them if they do not, employees in this situation may have these additional specific claims:
Employers should therefore look to enable such an employee to exhaust their statutory and contractual leave entitlements, and even consider a spell of unpaid leave/sabbatical, before heading down the route of withholding pay/disciplining.
8) Employees who don’t have a health condition but are anxious or frightened about returning to work or making the journey to work
Generally, employees who are just anxious about returning to work will fall under the category in question 1 and there are no additional steps that legally need to be considered. However, If an employee has an anxiety condition which is sufficiently severe that it amounts to a disability under equality law (which will not be the case for all forms of anxiety), then the risks under question 3 should be considered as there is an increased discrimination risk for this category of employees. If the employee's anxiety prevents them from attending work, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay.
9) Employees who fear being harassed in the workplace because they are from a country with a high incidence of COVID-19
If an employee is subjected to unwanted conduct in the workplace because they are (or are perceived to be) from a country with a high incidence of COVID-19, the employer could be liable for racial harassment unless it can show it took "all reasonable steps" to prevent the perpetrating member of staff from engaging in harassing behaviour. Therefore, employers should remind employees of their zero-tolerance approaches to discrimination and harassment to try to reassure worried employees.
10) *UPDATED* What if an employee who is clinically vulnerable really wants to return?
Generally, during Lockdown 3.0, if the employee can work from home, employers should direct the employee to the government’s guidance and explain that they must continue to work from home for that reason. If the employee cannot work from home, employers should direct the employee to the government’s shielding guidance, and explore the options of furlough, statutory sick pay, Employment Support Allowance or Universal Credit (as explained above), .
It may be difficult for employers to provide a safe workplace for such employees given the current situation. This is particularly tricky as it will involve weighing up the health and safety risks involved in allowing the employee to return with the potential discrimination or breach of contract risks of refusing to allow them to return. Such cases should be considered on an individual basis.
If you would like more information about the risks for each employee category above, please see our traffic light table here.
If you or your organisation would like more information about employees returning to work, please get in touch with your usual GQ|Littler contact or email email@example.com.
This information provided by GQ|Littler is for general information purposes only. The information presented is not legal advice and should not be used as a substitute for taking legal advice in any specific situation. Although this information summarises some major recent developments, it is not all inclusive and it may be subject to change as circumstances develop.