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Tricky Categories of Employees

Tricky Categories of Employees

By Lisa Rix - (Updated 12 August 2020)

Many businesses are now starting to reopen their workplaces and are making their workplaces “COVID-19 secure” in order to do so. The Government guidance now indicates that, as part of that process, employers should determine who can come into the workplace safely taking account of their journey, caring responsibilities, protected characteristics and other individual circumstances. Does that now mean that everyone can be required to go back into their workplaces?

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 article 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.

Our overview below 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 *IN BOLD* where guidance has significantly changed.

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) 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:

  • 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 (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. shielding) employees

As of 1 August 2020, “shielding” has been paused, and the Government’s updated guidance is that clinically extremely vulnerable people can now return to COVID-19 secure workplaces, butworkplaces but should continue to work from home where possible. If such employees cannot work from home, an employer should offer them the option of the safest available on-site role which can be given following social distancing guidelines and should consider alternative roles and adjusted working patterns temporarily as necessary.

If these steps are taken and the previously-shielded employee still refuses to return to work, in addition to the risks above, disciplining or not paying these employees carries a risk of disability discrimination (with such claims requiring no qualifying service and having uncapped compensation). This is because previously shielding employees are highly likely to qualify as disabled for employment law purposes. It is also more likely that the claims considered above are more likely to be made out by these employees: 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.

However, given the change in government guidance, so long as an employer can ensure their workplace is COVID-19 secure and they have taken the steps above, they are likely to face a much lower risk when disciplining or not paying previously shielding employees than they were under the Government’s previous guidance.

Moreover, 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). 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, including whether they can be put on furlough for the time being (if an available option) or unpaid periods of leave.

It is also worth mentioning that SSP, which was previously available for those who were shielding under government guidance and unable to work from home, is no longer available now that the Government’s guidance has changed.

3) *UPDATED* Employees who have a household member 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 shielding 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, now that shielding has been paused, the risks above are likely to reduce given that the government feels it is safe enough for previously shielding people to meet others again outside of their home, go to supermarkets to get food and return to COVID-19 secure workplaces.

4) Employees who are “clinically vulnerable” (not shielding)

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 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 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" (not shielding)

As immediately above, 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 list in any event). Therefore, it is likely that the same increased risks of claims which apply for those living with shielding 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

It seems that nearly all children of legal school age will be expected to return to school full-time in September 2020, and many nurseries have now reopened. This will reduce the pressure on many parents who have to date been trying to childcare and work from home concurrently. However, some employees may still struggle to return to the workplace until their usual childcare arrangements are fully operational. 

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 has been shielding really wants to return? 

Generally, since 1 August 2020, this is fine, so long as the employer takes the steps outlined in question 3 above. 

However, in some specific circumstances, an employer may find it very difficult to get comfortable that they can provide a safe workplace for such employees. An employer should explore all possible options and discuss these with the employee (including alternative working patterns, working locations, different temporary roles, furlough, unpaid leave, etc).  If the employee is not interested in any alternatives, it may be possible for employers to continue to employ that employee, but not pay them their full pay on the basis that they are not “able” to work. In such cases, the employee may be eligible for SSP. 

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.