COVID-19 – Return to Work Q&A’s
(Updated on 29 May 2020)
by Tamara Barbeary
With many businesses preparing to re-open and bring back furloughed employees, it is expected that many employers will have to grapple with difficult and unique issues arising from the employment law implications of the Covid-19 pandemic. We answer some of your questions below.
Q – Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?
If the employee can work from home, this may well resolve the issue. Current government guidance at the time of writing, states that employees should work from home where possible. The relaxation of some elements of the government’s guidance on 11 May 2020 has not changed the fact that those who can work from home should be permitted to do so. Therefore, it will be difficult for an employer to insist on attendance at work where the employee’s work can reasonably be carried on remotely. If homeworking is not possible, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.
If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work, then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence. If the absence is unauthorised, then the employee would likely not be entitled to pay as they are not willing to attend work.
However, the context of the refusal to attend work would need to be closely considered before disciplinary action were taken. Certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals which do not require qualifying service and action short of dismissal on these grounds could amount to a detriment which is unlawful under section 44 of the Employment Rights Act 1996.
Q – What can an employer do if an employee refuses to attend work in the context of a close relative being in a vulnerable category?
Some of the considerations above will be relevant in this context. If homeworking, or redeployment into a role that is suitable for homeworking, can be arranged then this is likely to be the obvious solution.
On 21 March 2020, the government issued the Shielding guidance which was updated on 18 May 2020. It envisages social distancing within a home environment. Under the heading “Living with other people”, the guidance notes:
“The rest of your household do not need to start shielding themselves, but they should do what they can to support you in shielding and to carefully follow guidance on social distancing.”
The guidance does not, therefore, expressly require someone living in the same household as someone who is practising shielding to stop working. However, we would expect employers to react sensitively to such genuine concerns, and, in many cases, allow a period of unpaid leave without any disciplinary repercussions as a minimum.
The law on associative discrimination does not protect the relative of a person with a protected characteristic against a failure to make reasonable adjustments, discrimination arising from disability or indirect discrimination (although under EU law, there is an argument that indirect associative discrimination could apply in the employment context). However, they are protected against direct discrimination, harassment and victimisation, so reasonable steps should be taken to ensure that the employee does not suffer repercussions because of their association with someone who has a protected characteristic and falls within one of the vulnerable groups.
Q – Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?
It is assumed for the purposes of this answer that either the employee or someone in their household is exhibiting symptoms of COVID-19 or they have been identified as clinically extremely vulnerable and notified to follow shielding measures and that they cannot work from home during their self-isolation.
Where an individual self-isolates or shields in response to either direction by a medical professional or government guidance, and they are unable to work from home, they will be deemed incapable under the new deemed incapacity rules for Statutory Sick Pay (SSP). They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.
Q – Where an employee falls into the “clinically vulnerable” category, can the employer require them to come into work if their role cannot be carried out remotely?
On 16 March 2020, the government issued guidance which “strongly advised” certain categories of vulnerable employees to practice social distancing measures including working from home and avoiding public transport. This guidance has been replaced twice, most recently on 22 May 2020 by new Social distancing guidance which refers to this category of individuals as “clinically vulnerable people”. Clinically vulnerable people are advised to stay at home as much as possible and take “particular care” to minimise contact outside of their household. Clinically vulnerable people are:
- Individuals aged 70 and over (regardless of medical conditions).
- Women who are pregnant.
- Individuals aged under 70 with an underlying health condition (being any adult instructed to get a flu jab each year on medical grounds). These include those with chronic mild to moderate respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system. For a full list, see Social distancing guidance.
The Shielding guidance sets out the categories of people the government consider to be “clinically extremely vulnerable”. These include organ transplant recipients, people with certain cancers, those with severe respiratory conditions and women who are pregnant and have significant heart disease. For a full list, see Shielding guidance.
The Guidance for employers provides that those who are in the clinically vulnerable group should be strongly advised to follow the Social distancing guidance, and those who are clinically extremely vulnerable should be shielded and supported to stay at home.
The Working safely guidance (published on 11 May 2020 and updated on 25 May 2020) provides that, where the clinically vulnerable cannot work from home, they should be offered the safest available roles on site, enabling them to stay two metres away from others. If this level of social distancing is not possible, employers should carry out an appropriate risk assessment, taking into account any specific obligations in relation to those individuals with protected characteristics (for example, pregnant employees who remain entitled to suspension on full pay if suitable roles cannot be found for them). Clinically extremely vulnerable individuals remain strongly advised not to work outside of the home.
If the employer is one which is permitted to continue operating (meaning that employees who cannot carry out their work from home are permitted to commute to work), it should consider its position very carefully before requiring an employee to come into work if they fall into one of the vulnerable categories identified, irrespective of the position in the Working safely guidance.
To do so could amount to a breach of the employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence. This could amount to a repudiatory breach of contract resulting in a claim for constructive dismissal and/or discrimination. The right to refrain from attending work for health and safety reasons due to a serious and imminent danger, could also be invoked by the employee and would be deemed automatically unfair if the employee is dismissed on these grounds.
Further, where an employee from one of the vulnerable groups subsequently contracts COVID-19 due to their employer’s actions, they will potentially have a claim for personal injury against the employer, although this could be very difficult for the employee to prove.
Q – Is an employee who is shielding entitled to Statutory Sick Pay (SSP)?
Initially this was not the case: an employee who fell within the categories considered extremely vulnerable from COVID-19 in the Shielding guidance was not entitled to SSP where they were unable to carry out their role from home, unless they or a member of their household had symptoms and they were required to self-isolate as a result.
However, on 16 April 2020, the law changed to amend the schedule inserted into the SSP Regulations, so that a person will be deemed incapable of work when they are self-isolating because:
- They are defined in public health guidance as extremely vulnerable and at very high risk of severe illness from COVID-19 because of an underlying health condition; and
- They have been advised by a notification (sent to, or in respect of, them) that, in accordance with that guidance, they need to follow rigorously shielding measures for the period specified in the notification.
Accordingly, a person who is following shielding measures as advised by a notification is deemed to be incapable of work for the purposes of SSP eligibility, assuming that they cannot work from home.
It remains the case that an employer can continue to pay an employee who is shielding full pay. However, in light of the changes to SSP made on 16 April 2020, it is unclear whether an employee who is shielding and unable to work from home can be put on furlough.
Q – Where an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19, can an employer dismiss them, or if not, what pay are they entitled to?
People who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19.
A requirement imposed by an employer to continue travelling to and attending work, to not pay them or to dismiss them due to their absence in this scenario, could amount to discrimination and automatically unfair dismissal or a detriment where there is a serious and imminent danger to their health.
In addition, if the reason the employee self-isolates is because of a disability that puts them into a high-risk category such as an auto-immune disease or a respiratory condition, disability discrimination issues may arise. The fact that the employee or worker does not fall within the prescribed list of clinically vulnerable and clinically extremely vulnerable people does not mean that they are not disabled and that they do not have protection from disability discrimination in this context. There may be people suffering from other illnesses which amount to a disability in terms of the Equality Act 2010 and who are more likely to suffer serious illness if they contract COVID-19, so employees should be considered on a case by case basis.
Where a disabled employee refuses to attend work because of the perceived increased risk because of their disability, medical advice should be sought as soon as possible, from the employee’s GP or occupational health, to confirm or clarify the potential risks and to see what adjustments, if any, should be made to assist the employee in continuing to work. Where the matter is urgent and there is insufficient time to obtain medical advice, employers may wish to err on the side of caution.
Employers should also take note of the Social distancing guidance which advises that employees who are clinically vulnerable should take particular care to minimise contact with others outside their household, and the Shielding guidance which sets out particular medical conditions which will make people “clinically extremely vulnerable” to COVID-19. Although the Working safely guidance envisages that some clinically vulnerable people may be required to attend work if they cannot work from home and social distancing is implemented, employers should conduct a careful risk assessment before requiring them to do so as well as considering the various Equality Act 2010 implications.
Q – How should an employer deal with an employee who has severe anxiety and is afraid to attend work?
An employer should be sympathetic to any concerns staff may have and try to resolve them to protect the health and safety of the employee. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave.
An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. An employer could offer extra car parking where possible so that the employee can avoid using public transport or arrange for them to temporarily work different hours to avoid peak time travel.
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.
Where an employee suffers from severe anxiety, this could amount to a disability under the Equality Act 2010. Medical advice should be sought as soon as possible from a specialist treating the employee, or occupational health, to determine whether the employee is disabled (if there is no recent diagnosis) and, if so, to see what adjustments, if any, should be made to assist the employee in continuing to work, such as home working or flexible hours.
Q – What about other high-risk employees who choose to self-isolate?
Some employees may fall into a high-risk category in relation to COVID-19 but are not disabled. The World Health Organisation (WHO) has identified that those aged over 60, or who suffer from cardiovascular disease, a respiratory condition, diabetes, an auto immune condition or who are pregnant, are at a higher risk of developing more severe symptoms.
Such employees may wish to self-isolate, even before seeking medical advice. An employer should listen to any concerns staff may have and if they are genuine, the employer must try to resolve them to protect the health and safety of their staff. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave. Employers should consider whether there are any potential indirect age discrimination issues if they require all employees to be in receipt of either a fit note, isolation note, or written request under the SSP Regulations to be eligible for contractual sick pay.
Employers should also take note of the Social distancing guidance which advises certain clinically vulnerable people to take particular care to minimise contact outside of their home, and the Shielding guidance, which sets out particular medical conditions which will make people particularly vulnerable to COVID-19. The list of specified health conditions is much larger than that issued by WHO and some will not necessarily amount to a disability under the Equality Act 2010, such as obesity.
Q – If an employee is asked to self-isolate under the new NHS Test and Trace system, what pay will they be entitled to?
Entitlement to statutory sick pay (SSP) has been extended, under The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020, to people who have been told to isolate under the new ‘NHS Test and Trace‘ system, which started in England on 28 May 2020. Other parts of Great Britain have similar, but not identical, Test and Trace systems.
Accordingly a person who has been notified that they have had contact with a person with coronavirus, and who is self-isolating for 14 days as a result, will be entitled to SSP. Some employees may have more favourable terms under their contracts of employment depending on how the absence provisions are worded.
If you require assistance in relation to any of the above issues or any other employment related matter, please contact our specialist team here at Lennons.
This article has been prepared in order to assist employers and employees on matters relating to the current coronavirus pandemic. It does not constitute legal advice. It has been prepared in good faith, but neither Lennons Solicitors, nor any of the individuals responsible for or involved in its preparation accept any responsibility or liability for anything done in reliance on it.
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