These challenges raise a plethora of issues for an employer to grapple with. The government guidance on Covid-19 is often opaque and contradictory. In an employment context the guidance does not have statutory effect when a tribunal is considering discrimination, the Equality Act 2010 (and associated EHRC code of practice, which is statutory) is still paramount.
Clinically Extremely Vulnerable
It is important to identify two different categories of vulnerable employees:
- The clinically extremely vulnerable; and
- The clinically vulnerable.
The former being those identified on a list prepared by the government (Covid19 Returning Employee and Discrimination Supplementary Information) but includes organ transplant recipients, people with certain cancers, those with severe respiratory conditions and women who are pregnant and have significant heart disease).
The COVID-19 Secure guidelines originally noted that the “clinically extremely vulnerable” had been “strongly advised not to work outside the home”. However, they were silent on what happened when these staff could not work from home. After the government announced the end of the shielding period, the guidelines were amended and now state that the clinically extremely vulnerable “have been strongly advised not to work outside the home during the pandemic peak and only return to work when community infection rates are low.
On 8 July 2020, the Shielding guidance was amended to provide that, from 1 August; the clinically extremely vulnerable should keep two metres away from people outside of their household or bubble wherever possible. The previous wording that qualified this, providing that they could keep one metre away from others with protective measures in place, was removed. However, no specific amendments were made to the Work and employment section of the Shielding guidance, which does not refer to physical distancing on return to work.
The social distancing guidance identifies the clinically vulnerable to be:
- Individuals aged 70 and over (regardless of medical conditions).
- Individuals under the age of 70 with a specified underlying health condition (which includes anyone instructed to get a flu jab each year on medical grounds).
- Pregnant women.
The guidelines suggest that clinically vulnerable employees “should be helped to work from home, either in their current role or in an alternative role”. Where it is not possible for them to work from home, they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (i.e. two metres away from others where possible or, where this is not possible, one metre with risk mitigation). Otherwise an employer should “carefully assess whether this involves an acceptable level of risk”, taking into account specific duties for those with characteristics protected under the Equality Act 2010.
The discrimination concerns that arise from implementing these provisions are that an employer may either:
- fails to make adequate provisions bearing in mind an employee’s protected characteristic; or
- In making the provisions the employer (often inadvertently) disadvantages one group of employees over another and indirectly discriminates against them.
The first of these is probably easier to deal with and is where the most likely challenge will come. A large number of the clinically extremely vulnerable and the clinically vulnerable will have disabilities falling within the definition of the Equality Act 2020 but not all.
When following the government’s guidance, above and assessing the ‘acceptable level of risk’ adjustments will have to be made to accommodate so far as reasonable the disadvantage to which a disabled employee is put by the measures.
The bad news for an employer is that there is no ‘one size fits all’ approach that can be adopted; each case will need to be assessed individually, most likely with the assessment of a medical practitioner or occupational health, providing they have the necessary specialist knowledge.
It would equally be wrong to adopt a policy that treats all disabled persons in the same way; many disabled employees will be at no greater risk from Covid-19 than other non-disabled employees.
It is clear from the government guidance that the over 70’s are considered clinically vulnerable but to apply a blanket policy to the over 70s is potentially age discrimination. The guidance clearly allows the employer to take a view on risk and allow employees over 70 to take on an acceptable level of risk. Importantly, age discrimination can be ‘justified’ if it represents a proportionate means of achieving a legitimate aim. A blanket policy which, for example, says we will not allow the over 70’s to return to work (or we will not employ the over 70’s) will be unlikely to be justified. This contrasts with a policy which assesses each case on its merits and then puts in place the prohibition.
The EHRC has issued specific Covid-19 related guidance in which the following are highlighted as examples of direct discrimination:
- ‘a manager asking a female employee working from home to check in with him more than a male employee, because of an assumption that the woman is more likely to be distracted by her children
- an employer deciding it will no longer recruit candidates from any ethnic minority to front-line roles after finding out some ethnic minorities are disproportionately impacted by coronavirus (COVID-19)
- employees over 60 not being informed that the physical workplace is reopening, as you do not want them to return because of the potential risk – the employer should consider less discriminatory ways of protecting older employees’.
The last two of these examples might be well meaning but are misguided and unlikely to be defensible in the courts.
Employers have additional duties to protect the health and safety of new and expectant mothers in the workplace. In summary, the law requires employers:
- To assess the workplace risks posed to new or expectant mothers or their babies.
- To alter the employee’s working conditions or hours of work to avoid any significant risk (regulation 16(2), Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) (MHSW Regulations)).
- Where it is not reasonable to alter working conditions or hours, or would not avoid the risk, to offer suitable alternative work on terms that are not “substantially less favourable” (regulation 16(3), MHSW Regulations and section 67, Employment Rights Act 1996 (ERA 1996)).
- Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay (regulation 16(3), MHSW Regulations and section 67, ERA 1996).
As pregnant women have been identified as clinically vulnerable in the social distancing guidance, 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 in accordance with regulation 16(3) of the MHSW Regulations.
It goes without saying that a policy that prohibits the employment of pregnant candidates (even if this is well meaning to exclude them from harm) would be unlawful sex discrimination.
To find out how Steeles Law Employment team can support you and your business, please do not hesitate to call 01603 598000 or email firstname.lastname@example.org. Appointments are available at our Diss, Norwich and London offices or at your offices by appointment.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.