Vulnerable and shielded employees; what are your rights?

In the course of the coronavirus crisis, we have noticed that there is some real confusion about the rights of vulnerable employees who have been required to either self-isolate or are now subject to the shielding program from the Government, and those who live with them.

What should employers do? 

Broadly, employers have a duty to protect all employees and when carrying out any risk assessments employers should identify employees who are particularly at risk including older employees, and those with pre-existing medical conditions such as respiratory problems, asthma, immunocompromised people or those with heart problems who are more vulnerable to serious complications of the virus. Those with certain conditions are likely to already be isolating right now, as they will be understandably reluctant to come into contact with people who might have the coronavirus at work or on public transport.

In line with the latest Government Guidance, employers should support these employees in working from home unless this is impossible. If an employer isn’t doing this, they may be at risk of employees (whether vulnerable or not) raising grievances. If they are raising concerns about health and safety or the employer’s breach of any legal obligation, they will potentially be protected by whistleblowing legislation. They then can’t be subjected to any detriment as a result of raising that concern.

If it’s not possible to work from home, employers should make arrangements for these employees to remain at home by some method. Whatever the solution, the Government has made it clear that no-one should be punished by their employer for isolating.

Employers may also wish to consider furloughing their employees who need to be isolated, and thereafter recovering under the Government Coronavirus Job Retention Scheme. As per recent government guidance, the Scheme is available to all employees in all businesses, and can be used for vulnerable people or those with childcare obligations. It is not limited to those employees who would have been laid off or made redundant. Any employee can be furloughed providing their employer had enrolled them onto PAYE online prior to the 28th of February and the employee has a UK bank account.

Discrimination? 

If disabled employees are at a disadvantage because they are more likely to suffer serious complications from an infection, then the employer has a duty to make a reasonable adjustment which may include home working, even where it has been deemed impossible across the wider workforce. Some employees who cannot to do their job from home may be able to show that it would be a reasonable adjustment to allow them to take time off from work.

For example, an immunocompromised person who cannot work from home may be entitled to time off which could be paid depending on how long the period of lockdown is expected to last, the level of disruption caused and the size, staff and resources of the employer.

An employer should also be wary of discriminatory behaviour which affects other protected characteristics. For example, refusing work from home arrangements for people despite them being elderly or pregnant, and therefore being more vulnerable at this time, or insisting that they use annual leave when other employees are not being required to do so.

Vulnerable employees who refuse to isolate? 

What if an employer is aware that they have a vulnerable employee, but that employee refuses to heed the government advice and isolate? In those cases, an employer would be able to insist they don’t attend work but would have to pay them in full unless they agree otherwise (e.g. they are eligible to be furloughed). Under new government guidance, vulnerable workers are now eligible to be furloughed, if they are self-isolating due to vulnerability. An employee could insist that they use annual leave to cover this time, but should be wary (again) of potential discrimination claims if that employee is therefore more disadvantaged as a result.

If the employee insists on attending work, all the same, this could be a failure to follow reasonable management instructions and the employee could be subject to disciplinary consequences.

Employees without vulnerabilities

Some people might feel they do not want to go to work because they’re afraid of catching coronavirus, but not because they are higher risk (although this fear may be a result of anxiety, which may be a disability under the Equality Act). As a starting point, all employers should be allowing their employees to work from home unless this is impossible.

An employer should listen to any concerns staff may have and should take steps to protect everyone. For example, they could offer extra car parking where possible so that people can avoid using public transport. If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave, or may request furlough, but the employer does not have to agree to this.

If an employee is unable to attend work due to childcare obligations, these individuals are now included within the scope of furlough and are eligible to be furloughed by their employer.

If an employee refuses to attend work without a valid reason, it could result in disciplinary action, but employers should be careful to be flexible at this time, as much as they can.

Rights of the Household

The consistent question which Jodie had when she was on her recent BBC 5Live Q&A was about the rights of workers in a household where there are also vulnerable persons.

Broadly, the Government Guidance should be leaned on, in that all employees should be working from home unless it’s impossible. If the employer is not following this guidance, an employee can raise this issue by way of a grievance (and may also have whistleblowing protection if they raise concerns about the wellbeing of the workforce at large). A failure to allow people to work from home where it is possible may also be discriminatory if employees have been selective about who can do this.

If it’s not possible, those who are living with the vulnerable do not necessarily have any legal protection or recourse. They can ask to be furloughed, but (as above), there is some inconsistency about whether this is possible in this scenario, so employers should tread carefully. They can also ask to take annual leave or unpaid leave, but otherwise it would just be a process of practicing good hygiene when returning from work, as a failure to attend work without a valid reason could result in disciplinary action.

If you have any questions about the content of this blog, or otherwise about coronavirus, we have a helpline at coronavirus@thrivelaw.co.uk. We also have a blog here, and an FAQ here, which may be able to help you.

Jodie has also been on BBC Look North to answer your questions on vulnerable persons rights which you can watch below.

 

Written by Alicia Collinson and Jodie Hill

Anything within this article should not be taken as legal advice. Any information provided will be general advice and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. If you wish to obtain specific advice to your situation and your decisions, please contact us and we will thereafter be able to advise.

Related Articles

Asda’s Employment Contract Changes: Fair or Foolish?

Life in Lockdown: The Impact of Grief and Employees’ Rights

Working 9 to 5, 4 Days a Week…?

Face Coverings in the Workplace: What are the Rules?

Mental Health in Lockdown: What are people concerned about? By Hebe Quinney

Furlough Bonus Scheme: What is it, and What’s the Point?

Unshielding Employees – What are their Rights?

The impact of COVID-19 on students and the new scheme.

Women through the cracks: Sex discrimination

Do you need to offer an appeal in redundancy dismissal situations?

What is a collective redundancy and what are employers’ obligations?

Race Discrimination: What is It, and How Can It Be Prevented?

Update: Spanish Quarantine: What Does This Mean For Employers and Employees?

Indirect Race Discrimination: What is It, and How Can It Be Prevented

Race Discrimination: What is It, and How Can It Be Prevented?

Update: Employment Status. Hairdresser wins landmark case.

Maternity Discrimination and Flexible Furlough

Women Through the Cracks

SSP and Travel

June’s Top 10 FAQ’s

Hill v Lloyds Bank: Discrimination and Mental Health

Pride month – LGBT legal leaders

Test and Trace update

Furlough Fraud

Commission under Furlough

Marital Discrimination: What Happens when Your Employees Split?

Disability & Shielding

Future of Furlough

Returning to work safely following Covid-19

A Four Day Week – Is It The Future?

Utilising Technology for Mental Health Support during Covid-19

#BLACKLIVESMATTER – HR professionals and their role in tackling racism, and what we are doing at Thrive Law

The importance of Redundancy Consultation – the problem with Jamie’s Italian

LGBTQ+ Figures in the Legal Sector

Calculating notice pay for employees on furlough

The Future of Furlough

Test and Trace: Employer’s Obligations

Life in Lockdown: How it has impacted the #ThriveTribe

Life in Lockdown: The Distressing Rise in Domestic Abuse and How Employers Can Help

Managing my Mental Health as a Mother

Life in Lockdown: NHS Staff and Possible PTSD After COVID-19

Health Care Workers and PPE Concerns: What are Their Duties and How Are They Protected?

The effect of lockdown on diversity in the workplace

Observing Ramadan during Lockdown

Emergency Volunteering Leave

Dealing with redundancy during COVID-19

Health and safety dismissals: An employee’s right to stay safe during a pandemic

Unfurloughing employees

Sleep and mental health

Raising concerns amid Covid-19: Are Employees Protected?

Maintaining your teams Mental Wellbeing (whilst working from home/Furlough)

Workplace Safety: 10 Important Steps to Making Your Workplace Safer for Employees

Airline crew launch “Project Wingman”

Statutory Sick Pay and Coronavirus

Why is sleep so important?

Pregnancy, Maternity and Furlough

Flexible working – is it possible in a law firm?

The superhero firms helping out in the coronavirus crisis

What are the Signs of Stress?

Statutory Duties owed by a Director of a Company; and How Do They Work with Furlough?

A barristers analysis of holiday pay and furlough

Coronavirus and Apprenticeships

Furlough and Annual Leave: How does it work?

Vulnerable and shielded employees; what are your rights?

The Coronavirus Act 2020

Workplace Accessibility: Is your workplace accessible to people with disabilities?

Coronavirus – FAQ’s

In the News: Coronavirus Employer obligations

UK in Lockdown – What You Need to Know

The F Word – Furlough

Short Time and Layoffs

School Closures

The Impact of Coronavirus on Employment – The Home Working Revolution

How to Prepare for a Remote Workforce

Coronavirus is contagious, but panic is too

What are the different types of Whistleblowing?

The Coronavirus and Flexible Working – What Your Organisation Can Do

Key Employment Law Changes in 2020

IR35 Changes – What do you need to know?

In the Media: Fairhall v University Hospital of North Tees & Hartlepool Foundation Trust

There’s a Storm Coming: Do You Have an Adverse Weather Policy for Employees?

May Bank Holiday Change Blog- All Change for 2020!

LGBT+ History Month

Can you sack someone who works in a supermarket and refuses to handle money?

In The News: Bereavement Leave

The Thrive Tribe’s Christmas Holiday

In The News: Discrimination and Equal Pay

Keep Informed: Its Beginning to Look A Lot Like Brexit – What will the Withdrawal Bill Mean for Employment Rights?

Bring Your Dog to Work – For More Than Just a Day?

In the News: Hangover Days

Political Discourse and Voting at Work: What are Employees’ Rights?

Vegetarianism & Veganism – Are they protected as Philosophical Beliefs?

Diversity: More than just Box-Ticking and Policies

Drugs and Alcohol Policy: Support or Discipline?

Bullying and Harassment in the Workplace

Yorkshire Legal Awards: Diversity and Inclusion Award

Yorkshire Post Excellence in Business: Social Mobility Award

Topic UK Magazine October 2019

Calling Time on the Booze Culture

Mental health discrimination is limiting the opportunities in the workplace for those who have served in the armed forces

How to Thrive – Top tips to reduce stress in your organisation

Keep Informed: MacDonald’s CEO dismissed for relationship at work

How to Handle Allergies in the Workplace

Menopause in the Workplace

The 4 Day Week Report

Feeling SAD?

Keep Informed: New case criticises workplace “banter” and awards £54,000 for race and sexual orientation discrimination

Surviving or Thriving?

Keep Informed: Women and Equalities Committee proposes changes to enforcement of discrimination rights

The Good Work Plan

Is your organisation ready for Generation Z?

Thriving In The Workplace and the #OneMind Petition

Dyslexia in the Workplace

Overpayments and Deductions from wages

The UK’s increasingly diabetic workforce

TheBusinessDesk: Further expansion for law firm; Promotions at engineering specialist; and more

LGBTQIA+ in the Workplace

Eid in the Workplace

Neurodiversity in the Workplace

Leeds & Yorkshire Lawyer Magazine – 11th April 2019

Recruiting Times – 12th February 2019 Employment contracts: What to check for before accepting the job

HR News – 6th February 2019 Over half of working Brits have accepted a job offer without checking the contract first.

Yorkshire Legal News – Thrive Law continues rapid growth – 12th November 2018

BR Online: Employee wellbeing and human capital – November 2018

MMB Magazine – 5 November 2018

The Telegraph- Business 24 October 2018

H & N Magazine 3 October 2018

South Leeds Life 3 October 2018

The Yorkshire Post 10 October 2018

Article in People Management- “Employers must do more to tackle male ‘stigma’ around shared parental leave” – 30th July

The Business Desk- “Independent law firm launches in Yorkshire”– July 16th

Interview with Ascension Club Leeds- July 11th

Law Society Gazette – 3rd May 2018

Stylist Magazine – 21st May

Yorkshire Post – 2 May 2018 – Greg Wright The Case for introducing mental health first aiders at work

What Is YOUR Workplace Doing for Ramadan?

April Updates in Employment Law

Thoughts On “Gagging Orders”

Time to Talk Day 2019

The Loneliness Epidemic

Thrive’s round up of 2018!

To talk or not to talk?

Why employers should exercise caution when using NDAs

Being your true self at work boosts mental wellbeing and performance

How to spot and eliminate risks of office workplace accidents

Why The Best Investment Is In Your Mental Health

Supporting LGBT+ Mental Health in the Workplace

What your employer needs to know when your child has a mental health illness – guest blog

The Do’s And Don’t For A Happy Employee – Guest Blog

HR leading the way into GDPR compliance for businesses

Dealing with stress in the workplace

Welcome to our new website and blog!