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.
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. 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:
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:
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.
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:
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 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.