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10 May 2020

“Staying alert” to the Employment issues as we prepare to come out of lockdown

Having now had the government’s announcement on the 'shape of a new plan' for a gradual release from lockdown, with more detail to follow in Parliament tomorrow, Oliver Brabbins, Head of Employment at Steeles Law, sets out his second article on some of the employment law challenges to come for employers.

Employees Returning to Work after Lockdown

From today the Government believes that those workers who can’t work from home ‘should’ return to work. This now presents some employers with a number of immediate and thorny employment issues. The main areas seem to me to be:

  • Deciding who should return and when after lockdown; and
  • Employees who refuse to return to work because they think it is still too dangerous to do so.

Most employers will be acutely aware of their responsibilities, under the Equality Act 2010, not to treat employees less favourably because of a protected characteristic (sex, race, disability etc.), or in other words not to directly discriminate.

Fewer employers are attuned to the more complex area of indirect discrimination – the application of a provision, criterion or practice (a ‘PCP’ – for example a policy), which applies to all but has a disparate impact on persons from who have one of the protected characteristics.

It is also unlawful to treat a disabled employee unfavourably because of something arising in consequence of their disability unless the employer is justified in doing so.

What does this mean for employers requiring employees to return from lockdown?

There are several scenarios that spring to mind where these legal obligations create difficult questions for employers to address.

The data in relation to Covid-19 seems to indicate that BAME (people from black, Asian and minority ethnic communities) employees may be at greater risk from exposure to the virus, with one recent piece of research from University College London, putting this group at a two to three times greater risk of death from infection.

An employer, who requires a group of staff of which some are BAME, to return to work after lockdown, may find those who are BAME have a valid case for saying that they are disproportionately disadvantaged by that policy. They may refuse to return, and an employer disciplining and ultimately dismissing such employees, should tread with a considerable degree of caution.

Whilst it is open to an employer to justify the application of a policy, which is applied equally but has a disparate impact on, in this case, arguably, BAME employees. They will need to show that they had a legitimate business aim in doing so and that they acted proportionately.

I can see that an employer might have a legitimate aim in getting staff back to work but I think an employment tribunal will be slow in many cases to find that dismissing an employee in these circumstances was proportionate.

Employees refusing to return, who are disciplined and/or dismissed also might argue that they have suffered a detriment or been dismissed for health and safety related reasons.

Health and Safety is going to become more of an issue for more employers in the post lockdown world than previously. Although all employers are obviously subject to rigorous health and safety laws, many businesses based in offices, rather than factories, will only be generally aware of their obligations. Offices have not hitherto been inherently dangerous places; that has changed. In times of a pandemic an office becomes a potentially lethal work environment, something that many employers are not used to.

There is little knowledge amongst employers of the health and safety protections within the Employment Rights Act 1996 (sections 44 – detriment and 100 – dismissal). Those sections of the act, so far as are relevant in this context, prohibit an employer treating an employee to his/her detriment or dismissing them because, in circumstances of danger, which an employee reasonably believes to be serious and imminent, he:

  • leaves or refuses to return to his place of work; and/or
  • takes or proposes to take appropriate steps to protect himself or other persons from the danger.

It is easy to imagine a scenario in which an employee refuses to return to work because they think the lockdown has been lifted too soon and he/she believes that their health is at risk. If they are dismissed or disciplined because they do not attend work in these circumstances, even if they have short service, that dismissal may be automatically unfair; a claim for which there is no limit on compensation.

To defend any such claim an employer will need to do all it can to establish that the employees’ fears on return to work are not well grounded and hence outside of the protection afforded by the legislation, because the employees’ beliefs are not reasonably held.

To have a good chance of establishing this defence an employer should consider the following:

  • well in advance of the lifting of lockdown undertaking a through risk assessment of the workplace;
  • complying fully with all government guidance on social distancing in the workplace;
  • considering the introduction of rigorous cleaning and PPE; and
  • communicating fully with staff on the safety measures in place, the extent of compliance with all available guidance.

Disabled employees also present a particular conundrum for employers in this context. Where a disabled employee’s impairment does not predispose them to contracting Covid-19, they will be in no different a position to their colleagues.

However, there will be some employees (for example cancer patients undergoing chemotherapy and therefore with a compromised immune system) who are particularly vulnerable. Not only might they reasonably conclude that they are at serious or imminent danger, when others might not but also, disabled employees are likely to be able to sustain an argument that, if they are disciplined or dismissed for refusing to return to work, they have been discriminated against for something arising in consequence of their disability.

An employer could seek to justify discrimination arising from an employee’s disability but in the writer’s opinion, in these circumstances that might be difficult. Discipline or dismissal might well not be proportionate, where an employer could avoid that course of action merely by delaying the employees return to work until it is safer for them to do so.

Finally, employers might well face an increased number of flexible working requests. Previously many employers turned down such requests on the grounds, broadly, that it was not practicable for work to be undertaken from home. That might now prove a harder case to sustain, when so many have been successfully doing so since late March 2020.

These are increasingly challenging times to be an employer and whatever the Prime Minister meant by his for call for us to “stay alert”, the wise employer will take this to include these and many other thorny legal consideration. If we can assist in anyway with this then please do not hesitate to contact a member of our team.

The first article from Oliver on the topic of preparing to come out of lockdown set out the steps employers need to take when considering starting a redundancy consultation.

Steeles Law has both a very experienced Employment Law Team and a Business Consultancy and Restructuring Team of which both are highly experienced in business re-organisation and the difficulties associated with the short-term challenges to business. These teams are focused on helping businesses which are struggling in the current climate as we come out of lockdown. If we can assist in any way with the challenges that your business is facing, please do not hesitate to contact the team via on employment@steeleslaw.co.uk or by calling 01603 598000.