Published 2nd April 2020
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.
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 firstname.lastname@example.org. 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.