Aside from claims relating directly to alleged health and safety breaches, employers may face wider exposure to potential employment claims under laws protecting employees from discrimination, as well as those protecting whistleblowers from dismissal or detriment. We consider the risk of claims to be concentrated in three main areas:
- selecting employees to return to work;
- managing employees who refuse to return to work for health & safety reasons; and
- supporting employees who are or might be disabled (both those who may have become disabled as a consequence of COVID-19 and also those who have other health conditions which make them more vulnerable to infection or severely negative outcomes if infected), or whose requirements (such as religious requirements) may add complexity to health and safety measures.
Selecting employees to return
Employers will need to give careful consideration to the selection process that they implement in order to determine which employees to return to the workplace first (or in what order they return). As a general rule, businesses will have flexibility to make selection determinations based on business needs and requirements. However, any selection process will need to avoid selection criteria which may be discriminatory. There is a particular risk of potential indirect discrimination (which arises where a policy or practice is applied equally to everyone but disproportionately affects a particular, protected group). For example, it may appear to make sense to prioritise the return of employees who do not have childcare or other caring responsibilities. A policy of this kind could, however, disproportionately affect men and women in different ways. Women, who may bear the brunt of the caring responsibilities, could be more likely to be excluded from the workplace (potentially on reduced pay). Men could also argue a disadvantage if they are more likely to be required to return to work in the early stages, when the COVID-19 related risk may be more pronounced. These perceived disadvantages could each give rise to indirect sex discrimination claims, unless the employer can show that the policy was a proportionate means of achieving a legitimate aim.
It will be important for employers to engage early with their employees to gauge their appetite to return to work and any personal challenges that they may face. Those with caring responsibilities may, indeed, prefer to have their return to work deferred. However, an employer will be more likely to mitigate its risk if that outcome is arrived at by way of engagement with employees, with the employee driving the outcome, rather than through mandating the approach.
Many employees are expressing concerns about returning to work, and some may refuse to do so even in circumstances where their employer believes it has taken all reasonable steps to protect the health and safety of its workers. Some of these cases may be resolved through clear and supportive communication which can act to reassure employees. However, in circumstances where employers are met with staunch refusals, they may be left with the unappealing route of giving employees an instruction to return and treating a refusal to do so as a disciplinary matter.
This is a particularly challenging scenario, as employees who refuse to return to work due to a reasonable belief that there is a serious and imminent danger, or who take steps to protect themselves or others from that danger, have a right at law not to suffer a detriment. An employer who takes disciplinary action against such an employee would need to feel confident that it could establish that the employee's belief in the danger was not a reasonable one.
Strategies for mitigation of this risk align with the wider strategies around mitigating health and safety risks in general – i.e. ensuring that the measures implemented following the risk assessment are clearly documented, implemented and communicated. Alternatives to requiring the employee to attend the workplace, such as continued homeworking, or paid or unpaid leave arrangements, should also be considered where possible.
Employers are under a duty to make reasonable adjustments for employees who suffer a disability. For these purposes a "disability" is any physical or mental impairment which has a substantial, long-term effect on an employee's ability to carry out their day to day activities. As well as the more obvious adjustments (such as to enable access to premises, or the provision of auxiliary aids), the duty to make reasonable adjustments is also required where an employer applies a "provision, criterion or practice" to an employee which substantially disadvantages a disabled employee as compared to those who are not.
In the context of COVID-19, requiring employees to attend the workplace (even if appropriate health and safety measures have been implemented) would likely constitute a "provision, criterion or practice" which would disproportionately affect employees who are vulnerable due to health concerns. Such employees may have a higher risk of infection and/or a higher risk of negative outcomes if they are infected. Some employees may also be newly disabled following infection by COVID-19 (i.e. if they are expected to have on-going long-term health implications). In these cases, it will be incumbent on the employer to consider what reasonable adjustments can be made. Continued working from home may be reasonable in many cases. Employers should also consider whether any additional PPE should be provided to disabled employees who cannot work from home, and whether there are other additional steps that can be taken to afford a higher level of protection to these employees.
Some employers may also encounter employees whose religion and belief includes a requirement which is not entirely compatible with PPE (for example, wearing a beard or a turban may impede the use of masks). Requiring an employee to shave their beard or remove their turban could give rise to potential indirect discrimination claims. In these circumstances, the employer is likely to have a legitimate aim (i.e. health and safety), however, the question will be whether their proposed approach is proportionate. Consideration should be given to whether other types of PPE could be used which would be more effective, notwithstanding the employee's beard or clothing, and also whether duties can be modified to lower the potential risk faced by the employee.