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Tricky Categories of Employees

Tricky Categories of Employees

By Lisa Rix - (Updated 23 July 2021)

Now that “Freedom Day” has passed, and the guidance is no longer that those who can work from home should do so, employers will again be looking for guidance as to whether they are allowed to get people back into workplaces.

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 fact-sheet 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.

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

The government guidance is now that employers can start to plan a return to workplaces, but that during this current period of high prevalence of COVID-19, there should be a gradual return over the summer. It is also recommended that employers remain responsive to worker’s needs, particularly during this period when not every adult has received 2 vaccine doses.

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 if they are required to come back to the office now:

  • 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). As the broader risk of coronavirus seems to be reducing with the vaccines, this may become a more difficult claim to bring longer term, but equally the current rising in cases makes this claim still highly relevant for many. 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.

    Generally, if an employer follows all the government guidance on re-opening their business (including ensuring their workplace is COVID secure, consulting with employees about the health and safety measures put in place and discussing the timing and phasing of returns to work), this will really lower the risk when requiring all employees to return to work.

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

Clinically extremely vulnerable employees are no longer advised to shield and are instead advised to follow the general guidance with such additional precautions as they might wish to continue to take. The workplace guidance says that employers should “give extra consideration to people at higher risk and to workers facing mental and physical health difficulties” and “continue to support these workers by discussing with them their individual needs and supporting them in taking any additional precautions advised by their clinicians”.

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 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, 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. However, given the guidance on giving extra consideration to such employees, it would be less risky to be a little more flexible with such employees whilst the infection rate remains high.

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 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, as there is currently no guidance for the clinically extremely vulnerable to shield, this risk is currently lower than previous stages of the pandemic.


4) Employees who are “clinically vulnerable” 

Employers should remember that it is not only those who have been 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:

  • 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 if this would not avoid the risk, 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 and therefore might be more reluctant to attend workplaces, particularly in their third trimester when the risks of contracting COVID-19 are higher for them. In those cases, 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 home from school due to a COVID outbreak in their class or year.

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 home from school due to a COVID case in their class or year (this being a particular issue in the summer term in 2021 with high numbers of schoolchildren being sent home to self-isolate). Although the government guidance has now changed on the numbers of children who will be required to self-isolate, it could still be an issue in the autumn/winter later this year.

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:

  • 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.

It is worth noting that these risks do not equally apply to parents who say they don’t want to return to the workplace due to needing to look after their children during the summer holidays, which they would have been expected to make arrangements for in normal circumstances in any event.

 
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) *NEW* Employees who have not been vaccinated or fully vaccinated and say they do not wish to return to work for that reason whilst cases are high

For employees who have not been vaccinated or fully vaccinated, employers should take things on a case-by-case basis. The guidance is currently that employers should be starting a gradual return to workplaces but that employers should remain responsive to workers’ needs, particularly whilst not every adult has been offered two vaccine doses.

Generally, although younger people are less likely to have had two doses of the vaccine, it will not be a particularly good reason for young people who are not fully vaccinated but statistically should not be badly affected by COVID-19 to say they want to wait to get their second vaccination before they return to work, given that their risk is not necessarily higher overall than those who are fully vaccinated but would otherwise be at higher risk if they contracted COVID-19 due to their older age. It would be preferable for employers to accommodate requests for an extra couple of months delayed return for employees who want to receive their second jabs before returning, especially given the government guidance, but this is not a requirement.

Employers should seek to understand the reasons why employees have not had vaccinations if they give that as a reason why they are reluctant to return to work yet. There might be genuinely good reasons why an employee has not had the vaccine and then is uncomfortable about returning to work during the current period of high infection rates. There might also be issues of discrimination. Employers should consider whether any flexibility should be given to that employee regarding their return to the workplace, in order to reduce the risks for the various categories of employees above.

For employees who have chosen not to have the vaccine and their reasons for that choice do not give rise to issues of discrimination or something else which might make it unreasonable for them to be expected to have the vaccine, it will be low risk to take action against such employees if they refuse to follow instructions regarding their return to work.

 

10) Employees who fear harassment 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.

 
11) *UPDATED* What if an employee who is clinically extremely vulnerable really wants to return? 

Generally, the guidance is that clinically extremely vulnerable employees should now follow the same guidance as everyone else, with any extra precautions they wish to take themselves. Most of the time it is therefore completely fine for such employees to now return to work.

However, there may be cases where it is difficult for employers to provide a safe workplace for such employees given the current situation and do not wish for them to return yet. 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 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.