COVID19 – “Vulnerable” but expected to work?

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This is an update to our original article posted on 20 March 2020.

I am “vulnerable” due to my health, age or pregnancy, but my employer expects me to come into work – what are my rights?

The outbreak of COVID-19 and its steady spread of chaos across the world is causing uncertainty for both employers and employees. It is important that businesses can carry on running and keep afloat so they can support their employees, but the Government has told everyone to practice social distancing, and certain individuals to follow particularly stringent measures in order to protect the most vulnerable.

Those deemed as needing particular protection are:

  • the over 70’s
  • those with certain underlying health conditions
  • pregnant women.

Shielding

Additionally, there are certain individuals within each of these groups that have been deemed as requiring particular protection, for example, those with certain cancers, or those already on immunosuppression therapies. These individuals have been told by the government not to leave their home for 12 weeks and special arrangements are being put in place for delivery of food and medicine. These individuals are in the group known as “shielding”.

The government guidance on the Coronavirus Job Retention Scheme (or “furlough leave”) makes it clear that individuals who are unable to work because they are shielding in line with public health guidance or need to stay at home with someone who is shielding can be furloughed. This is the case even if their job is still operational, although they should work from home if they possibly can.

Read more about furlough leave in:

Vulnerable staff

So what are the rights for employees in these wider categories, and how far should employers go to protect them?

The starting point is general employment law, which has not been suspended because of coronavirus. Key issues that remain prevalent are:

  • duty of care to staff (particularly pregnant women)
  • duty to carry out health and safety risk assessments
  • implied term of mutual trust and confidence
  • Equality Act 2010 considerations
  • operation of family-friendly rights.

Right to a safe working environment

Although there may not be a clause in your employment contract that says it, all employers have an implied obligation to provide a healthy and safe working environment and to uphold their duties to protect the health and safety of employees. This is particularly so in respect of pregnant women, to whom there is a particular duty of care.

As an employee, if you are at risk, notify your employer that you believe you are at risk and suggest a way in which you can carry out your duties safely.

If you are not at risk and you do not attend work as normal, your employer is legally entitled to put you through a disciplinary process if your absence is unauthorised.

Working from home

The Government advice to all since the lockdown came into place on 23 March 2020 is that those who “can” work from home should do so.

This arrangement, however, generally only works for those who:

  1. have a desk job
  2. have the technology to support their work
  3. do not have other commitments to take care of whilst at home such as dependants (unless other measures for flexible working can be put in place in addition, for example, a change in working hours).

If you can comfortably carry on your role whilst working from home, your employer should be amenable to this suggestion. If you are working, albeit from home, and can maintain adequate contact with your employer, there should be no impact on your pay by reason of working from home.

I have asked my employer to work from home, and I can do so, but they will not let me

Employees – in the first instance, ask to have a meeting with your employer in order to explain the situation, your particular vulnerability, the advice you are trying to follow and how you think the arrangements to work from home can work for you.

If you have been there for over 26 weeks you could also consider making a formal working request which can only be declined on specified grounds.

If they continue to refuse, consider raising a formal grievance as this could, in some cases, amount to discriminatory treatment or a failure to provide a safe working environment.

Employers – you should try to act pragmatically at this time, and bear in mind the rule set out by the government during the lockdown period. This is unchartered territory but taking a sensible view will help morale, work ethic and protect the mental health of employees.

If working from home is not possible, consider whether other measures can be taken such as varying working hours or working spaces. Any agreement for an employee to work from home can be documented as a temporary measure rather than a formal change, and it may be better to take this approach than have to deal with a formal flexible working request at this time.

A failure to act in the protection particularly of those deemed as vulnerable could also result in grievances and may amount to discriminatory treatment in certain cases (see below).

I am not able to work from home

Some jobs do not have the ability or capacity to be able to be performed at home. Some companies do not have the technology nor infrastructure to allow this either.

In such circumstances, those that are particularly vulnerable should still notify their employer and employers should try to find ways to reduce the vulnerabilities where possible. For example, can they be moved away from particular at-risk areas, such as open-plan or contact with sick people? Can their hours be varied to enable them to use public transport during quieter times of the day or work when fewer colleagues are available?

Ensure that hand washing facilities and hand sanitiser are readily available and continue providing people with up-to-date advice.

Choosing to self isolate rather than work

As an employee or worker, if you do not feel able to attend work due to being in one of the vulnerable groups, you would be self-isolating within the meaning of the new Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, on the basis that you are doing so to avoid infection by following the advice and guidance of Public Health England (or one of the other devolved Department for Health bodies). As a result, you would be entitled to receive statutory sick pay.

If you are concerned because you are in the later stages of pregnancy, it may also be possible to commence your maternity leave earlier than planned.

You could also discuss the possibility of being furloughed with your employer if there are decisions being made regarding some staff being furloughed.

Warning to employers

Employers should be careful about making rash decisions regarding staff, in particular those deemed as “vulnerable”. There are risks around various process being engaged, including having to deal with formal grievances or, in the worst cases scenario, claims.

Employees could try to claim constructive unfair dismissal if things are handled very badly to the extent that there is a repudiatory breach of contract, and there could also be claims brought under the Equality Act 2010.

The main risk would be for claims of indirect discrimination on the grounds of age, disability or sex. This claim is possible where there is a policy (e.g. no homeworking) that seemingly applies to everyone equally, but has a disproportionate effect on certain groups because of their protected characteristic.

Further information

If you are concerned about the measures you are seeking to take as an employer, or feel you have been unfairly treated as an employee, please contact a member of the Ashtons Legal Employment team through this website or by calling 0330 404 0778.

For all of our COVID-19 (Coronavirus) advice, please visit http://www.ashtonslegal.co.uk/coronavirus/


This information is correct at 11.30am on 17 April 2020.


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