Tricky Categories of Employees

By Lisa Rix - (Updated 11 November 2020)

The new government guidance published on 31 October 2020 and updated on 6 November 2020 in relation to the new national “lockdown” which started on 5 November 2020 states that employees who can work “effectively” from home should do so, but where people cannot they should continue to travel to their workplace. The addition of the word “effectively” is different to the previous guidance back in March 2020 and does seem to provide more flexibility for employers.

However, many businesses will already be planning for when workplaces can reopen again (hopefully on 3 December 2020), despite the continuing risk of COVID-19 (and 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.

Top tips:

Tailor your approach according to individual circumstances.
Trying to deal with employees unwilling to return to the workplace informally or by flexing your approach will be lower risk than forcing the issue by withholding wages, disciplining or dismissing them.
Withholding wages, disciplining or dismissing employees may result in health and safety claims, discrimination claims, whistleblowing claims and breach of contract claims (the strength of such claims will vary on the circumstances).

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:

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Health and safety claims – if an employee can show that they reasonably believe that they are in serious and imminent danger of contracting COVID-19 either in the workplace or on their journey into work, and have been dismissed (constructively or not) or subjected to a detriment as a result of refusing to attend the workplace, then they could bring a claim for health and safety detriment or automatically unfair dismissal.

Strictly speaking these claims can still be brought even where employers have implemented a robust risk assessment and measures to make their workplace COVID-19 secure. However, the chance of an employee successfully arguing that they have a “reasonable belief” in serious and imminent danger can be mitigated by (i) communicating and consulting with staff on those measures and (ii) looking for measures to mitigate the risks associated with the commute to work (such as staggered start and end times). This claim may have more weight given the national restrictions in place until 3 December 2020. However, if the broader risk of coronavirus (hopefully) reduces, this may become a more difficult claim to bring longer term. It is also worth remembering that employees can also bring claims in negligence if employers do not provide safe systems of working and the employee is injured or caused loss as a result (without needing the additional steps of discipline/suspension of pay/dismissal).
Whistleblowing claims – if an employee can show that they have been subjected to detriment or dismissed (constructively or not) by reason of making a protected disclosure (such as an employer failing to provide a safe system of work or the health and safety of any individual being endangered) then they could bring a claim for whistleblowing detriment or automatically unfair dismissal.
Breach of contract claims (and unlawful deductions from wages claims) – if an employee can show that their employer has breached the implied term to take reasonable care of the health and safety of employees or that an instruction to return to the workplace is not “reasonable” (and therefore breaches the implied duty of mutual trust and confidence), then the employee may be able to recover any losses they suffer if they are not paid in such circumstances, and could in some cases even treat themselves as dismissed and claim constructive dismissal.

2) *UPDATED* “Clinically extremely vulnerable” (i.e. previously shielding) employees

Clinically extremely vulnerable people are not being asked to fully “shield” under the current restrictions until 3 December 2020, but the government’s guidance is that they should work from home and if they cannot work from home they may be eligible for statutory sick pay, Employment Support Allocations or Universal Credit. Employers should also consider placing such employees on furlough for the time being (if an available option). The risks in requiring clinically extremely vulnerable employees to return to work will depend on timing:

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From now until 3 December 2020, the situation is largely as it was in the previous lockdown in March 2020. Clinically extremely vulnerable employees are highly likely to qualify as disabled for employment law purposes, and while the government guidance remains that they should not attend workplaces, trying to force them to return is fraught with risk.
In addition to the risks above, disciplining or not paying these employees 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.
We will have to wait to see what the government guidance is after 3 December 2020, but should it be similar to the previous guidance for clinically extremely vulnerable employees, they may be able to return to COVID-secure workplaces if they cannot work from home. If that is the case, so long as an employer can ensure their workplace is COVID secure, they are likely to face a much lower risk when requiring clinically extremely vulnerable employees to return to work, both in respect of disability discrimination claims and health and safety claims.
However, such employees are still 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) and the government guidance asks employers to “ease the transition” for those employees to return to work. 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 was previously 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, given that the government guidance states that such people can still attend work if they cannot work from home until 3 December 2020, the risks above are likely to be very low.

4) Employees who are “clinically vulnerable”

Employers should remember that it is not only those who were previously 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 were 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:

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Specifically assessing the workplace risks posed to them
Altering the employee's working conditions or hours of work to avoid any significant risks
Or if not reasonable to do so or this would not avoid the risk, to offer suitable alternative work on terms that are not "substantially less favourable"
Or if suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay (so-called maternity suspension).

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

Although schools and nurseries are largely up and running again employees may struggle to return to the workplace for any periods during which their children are required to stay at home due to a COVID outbreak in their class or year at school or nursery.

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Such employees may 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:

Indirect sex discrimination (if a female employee can show that the requirement to return to the workplace disproportionately affects female employees).
Detriment/unfair dismissal if they can show that they are penalised as a result of requesting/taking parental or statutory time off for dependants.

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, until 3 December 2020, employers should direct the employee to the guidance and explain that they cannot allow them to attend the workplace at the moment. In such cases, the employee may be eligible for SSP, but do not need to receive full pay.

However, provided that the government guidance allows clinically extremely vulnerable employees to return to workplaces from 3 December 2020 so long as the employer can make the workplace COVID secure, it will be acceptable to allow them to do so. If employers cannot provide a COVID secure workplace, it is likely to be more complex whether such employees who are asked to remain away from work will need to be paid in full during that period. This is a particularly tricky area as it involves 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 info@gqlittler.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.

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