COVID-19 Employment Q&A

During the lockdown period, people may leave their homes only for work purposes where it is ‘not reasonably possible’ for the employee to work from home and it is ‘reasonably necessary’ for the person to attend the workplace. For an analysis of the latest guidance, see our COVID-19 Return to Work and Employment Law – Action Plan for Businesses in England.

For those employees who cannot work from home, the following guidance is applicable:

(a) Clinically extremely vulnerable

i. Approach

• No. The latest guidance states that people who are clinically extremely vulnerable should not attend the workplace.
• The Advisory, Conciliation, and Arbitration Service (ACAS) states that where it is not possible for a clinically extremely vulnerable person to return to work, another option for the employer is to keep the worker on furlough.
• Note that for pregnant workers who are defined as clinically extremely vulnerable, if the employer cannot put the necessary control measures in place to protect those workers from harm, such as adjustments to the job or working from home, the employer should suspend the pregnant worker on paid leave in line with regulation 16(3) of the Management of Health and Safety at Work Regulations 1999.

ii. Potential claims

• Unsafe workplace. Employers have a duty to take reasonable care of the health and safety of employees. This duty arises in the tort of negligence, under statute and as an implied term of the employment contract. The employer must also take reasonable steps to provide a safe workplace and a safe system of work.
• Termination automatically unfair. Termination for an employee’s refusal to return to work will be automatically unfair where the employee’s reason is that they have a reasonable belief that returning poses a serious and imminent danger to their health that cannot be reasonably averted. This claim is more likely to succeed in the case of a clinically extremely vulnerable individual. Depending on the facts, the employee could claim compensation for any detriment, such as nonpayment of wages . This also applies to constructive dismissal (see below).
  • To minimise the risk of challenge, employers should carry out a risk assessment in consultation with employees, agree health and safety measures with the workforce, and make the workplace COVID-19 secure (i.e., follow the government guidance as closely as possible). In the office context, it should be relatively straightforward to put in place sufficient safeguards.
  • Whether the employee’s belief is “reasonable” is likely to depend on various factors, including how diligently the employer has assessed risks and followed guidance, whether any further safeguards can be used (such as personal protective equipment (PPE)), and the vulnerability of the employee or their household members. It will also depend on the evolving epidemiological evidence as the understanding of COVID-19 develops.
  • In addition, employers should carefully consider an employee's justification for failing to attend work in this context before taking any action.

• Constructive dismissal. Where an employer does not protect an employee's health and safety, or treats them detrimentally in response to a complaint, the employee may be in a position to resign and claim constructive dismissal.
  Repudiatory breaches in the context of COVID-19 may include:
  • breach of the implied contractual term of mutual trust and confidence; and
  • where the employer fails to take reasonably practicable steps to provide a safe system of work and fails to investigate complaints relating to health and safety promptly and reasonably.

• Discrimination. A vulnerable employee could potentially have a claim for unlawful discrimination under the Equality Act 2020, particularly on the grounds of disability, pregnancy, or age, if an employer either (i) unreasonably tries to pressure the employee to go to work or (ii) unreasonably disciplines the employee for not going to work. Note that an employee who does not fall within the prescribed list of clinically vulnerable and clinically extremely vulnerable people may still have a health condition that is considered a disability under the Equality Act. Such discrimination can be justified, but this is likely to be very difficult where the employer has failed to make reasonable adjustments, such as permitting the employee to work from home or transferring them to a role that enables them to work from home.
  • Indirect discrimination. There may be a case that the employer's provision, criterion, or practice (PCP) of requiring all employees to continue to attend work during the pandemic could be indirectly discriminatory against employees who have a disability or are pregnant. In such a case, the employer should consider whether the PCP can be justified as ‘a proportionate means of achieving a legitimate aim’.

• Personal injury. Where an employee contracts COVID-19 due to their employer's actions, they will potentially have a claim for personal injury against the employer.

(b) Clinically vulnerable

i. Approach

• Yes, if the employee cannot work from home and the workplace is COVID-19 secure. The employer would need to undertake appropriate risk assessments in relation to the employee's particular vulnerability and related measures that can be put in place in the workplace¹.

ii. Potential claims

• See the claims outlined for clinically extremely vulnerable employees above. The same risks apply, although some of these may be reduced for a clinically vulnerable employee as compared to a clinically extremely vulnerable employee.

(c) An employee who has someone in their household who is (a) clinically extremely vulnerable or (b) clinically vulnerable

i. Approach

• Yes, if the employee cannot work from home and the workplace is COVID-19 secure. The employer would need to undertake an appropriate risk assessment that pays particular regard to employees with vulnerable household members. Employers should do their best to accommodate such employees, including by permitting them to work from home where possible. Government guidance states that particular attention should be paid to those who live with clinically extremely vulnerable individuals but makes no suggestions as to particular steps employers should take in relation to any members of their staff that do so.

(a) Clinical extremely vulnerable: Health and Safety Executive guidance states that the approach taken by employers towards clinically extremely vulnerable employees also applies to employees living with somebody who is clinically extremely vulnerable.

(b) Clinically vulnerable: The guidance is silent with respect to employees who live with somebody who is clinically vulnerable. When conducting risk assessments, employers should pay particular regard to employees with vulnerable household members. Where the risk is unavoidable, employers should do their best to accommodate such employees, including by permitting them to work from home.

ii. Potential claims

• Termination automatically unfair. As mentioned, termination for an employee’s refusal to return to work will be automatically unfair where the employee’s reason is that they have a reasonable belief that returning poses a serious and imminent danger to their health that cannot be reasonably averted. ‘Danger’ includes danger to others, including members of the public and, potentially, the employee’s household members. This claim would extend to constructive dismissal claims.
• Discrimination. The law on associative discrimination does not protect the relative of a person with a protected characteristic against a failure to make reasonable adjustments, discrimination arising from disability, or indirect discrimination. However, employees are protected against direct discrimination, harassment, and victimisation, so reasonable steps should be taken to ensure that they do not suffer repercussions because of their association with someone who has a protected characteristic and falls within one of the vulnerable groups. Nonetheless, a discrimination claim is unlikely to succeed because discrimination arises only if the employee is treated less favourably because of the shielding person’s disability. This would not occur unless other employees in similar circumstances had been treated differently. Note that the employer is not required to make reasonable adjustments, as in these circumstances the employee themselves is not disabled.

(d) An employee who does not mind attending work but refuses to use the underground / public transport

i. Approach

• Yes, if the employee cannot work from home and the workplace is COVID-19 secure, although note the potential claims below. Employers should consult with their workers to determine who can come into the workplace safely, taking account a person’s journey. Extra consideration should be given to those people at higher risk. Businesses should consider the impact of workplaces’ reopening on local transport and take appropriate mitigating actions, for example staggered start and finish times for staff.

ii. Potential claims

• Termination automatically unfair. An employee is entitled to refrain from attending work where the employee reasonably believes that there is a serious and imminent risk of danger in the workplace that cannot be reasonably averted. There is a possibility that this same protection could extend to an employee who reasonably believes that their commute presents such a danger, although the position is less clear. This claim could extend to constructive dismissal.
  • The Employment Appeal Tribunal (EAT)’s decision in Edwards and others v The Secretary of State for Justice UKEAT/0123/14 suggests that there is no reason in principle that such a claim could not succeed, but the position will remain unclear until there is a ruling on this point and employers and employees reach consensus on what would constitute an acceptable risk level. Further, there are circumstances where it will be difficult to maintain the required level of social distancing on public transport necessary to minimise the risk of contracting COVID-19.
  • The wording of ss44 and 100 of the ERA 1996 appear to be wide enough to potentially cover an employee who has reasonable belief that their commute represents a serious and imminent danger in this way. However, the danger needs to be one that the employee could not reasonably be expected to avert. The danger could potentially be reduced by the employer allowing flexibility to travel at off-peak times or (depending on the circumstances) offering extra car parking where possible so that employees can avoid using public transport.

• Discrimination (see above).

• Negligence. Employers have a common law duty to take reasonable care for the health and safety of their employees. An employee may succeed in a tortious claim for negligence against their employer if the employee is able to prove that the employer (i) breached this duty, (ii) which caused (or materially caused) the employee to suffer harm, which was (iii) reasonably foreseeable. While the employer’s duty of care towards its employees clearly applies in the workplace, it is not clear whether this duty would be found to extend to the employee’s commute. For the duty of care to be interpreted in this way would likely constitute a ‘novel situation’ that would require the court to consider whether it would be ‘fair, just and reasonable’ to impose liability.

• In Smith v Stages [1989] A.C. 928] the House of Lords considered, for the purposes of a negligence claim, in what circumstances an employee would be acting within in their course of employment when they were travelling for work. The court outlined the following general propositions for journeys to and from work:

1. When an employee was travelling between his ordinary residence and work by any means of transport whether or not provided by his employer, he was not acting in the course of his employment unless contractually obliged to do so.
2. When travelling between workplaces, an employee was in the course of employment.
3. When an employee was paid for travelling in his employer’s time, the fact that the employee could choose the time and mode of transport did not take the journey out of the course of his employment.
4. When an employee was travelling from his ordinary residence to an unusual place of work or to an emergency, the employee would be acting in the course of his employment.
5. A deviation or interruption of a journey would, for that time, take an employee out of the course of his employment.

• These propositions have not been tested in any subsequent case but indicate the kind of analysis that could inform the court if asked to outline the scope of an employer’s duty of care within the context of the COVID-19 pandemic.
  
  NB: Regardless of their vulnerability, if a worker, visitor, or someone in their household has a persistent cough or high temperature or has lost their sense of taste or smell, they should be isolating. Since 28 September 2020, employers cannot legally require someone who is being required to self-isolate to come to work.

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^{1 - NB: The government workplace guidance states that extra consideration should be given to those people ‘at higher risk’ (who are not classed as clinically extremely vulnerable or clinically vulnerable), including (i) older males; (ii) people who have a high body mass index; (iii) people who have health conditions such as diabetes; and (iv) some people from some Black, Asian, or minority ethnic backgrounds. Employers should consider these higher-risk employees in their risk assessment.}

• On 10 September 2020 the Department of Health and Social Care (DHSC) published guidance for employers with respect to COVID-19 testing and contact tracing.
• There is no obligation on employers to run testing programmes, but the guidance advises employers who would like to test nonsymptomatic staff to use private alternatives to NHS Test and Trace and to consider private alternatives.
• The guidance provides information about the types of testing available (i.e., virus and antibody, point of care, and self-administered/assisted sampling) as well as summarising relevant legal obligations (including when using apps); these are summarised in Annex A to the guidance. In particular:
  • Before deciding to test staff. Employers should, inter alia, consider the scope of any testing programme (e.g., whether contractors will be tested), the frequency of testing, arrangements for individuals who refuse to be tested, and how test results will be used.
  • Communicating the intention to test staff. Any communications should be transparent and outline how any testing programme will operate in practice. Employers are ‘strongly advised’ to consult with staff associations or unions before implementing any policy. They are also reminded of the need to comply with the General Data Protection Regulation (GDPR) and Data Protection Act 2018.
  • Contact tracing staff. Although not compulsory, employers may want to introduce internal tracing systems alongside testing programmes. Any individual who has been identified as a contact by an internal tracing system, but not NHS Test and Trace, will not qualify for Statutory Sick Pay (SSP). Provision should be made for them to work from home where possible. If this is not possible, the individual may remain entitled to full pay unless their employment contract provides otherwise. Individuals do not have to self-isolate unless they are contacted by NHS Test and Trace but are advised to avoid contact with those at "high increased risk" of severe illness resulting from COVID-19.

• The guidance provides information on how to communicate test results and with whom and what employers can and cannot do with the results. It encourages employers to keep staff informed about potential or confirmed COVID-19 cases but advises that individuals should not be named.
• Note that the guidance applies to England only but states that ‘equivalent guidance’ will be published for Scotland, Wales, and Northern Ireland.

 

NB: regardless of any private testing arrangement, employers should ‘assist the [NHS] Test and Trace service by keeping a temporary record of […] staff shift patterns for 21 days and assist NHS Test and Trace with requests for that data if needed’. Since 18 September 2020, this has been enforced in law.

As employees have been working from home or placed on furlough, and international and domestic travel have been severely restricted, employers are likely to see a buildup of annual leave among the workforce. As employees return to work and restrictions ease, employees may seek to take this accrued leave within a similar condensed time period or cancel previous requests, raising issues for employers.

•  Employers may require employees to take holiday, subject to any requirements in the employment contract or holiday policy. Under the Working Time Regulations (WTR), employers must provide prior notice of at least twice the number of days the employee is required to take.
• To cancel approved holiday, under the WTR employers must give employees as many days’ prior notice as are being cancelled, subject to any requirements in the employment contract or holiday policy.
• Employers may also refuse cancellation requests from employees in order to prevent the buildup of leave in the workforce and manage workload.
• Employers should be aware that employees and workers can now carry over up to 20 days’ paid holiday into the next two leave years, if they were unable to take such leave as a result of COVID-19, for example because they were self-isolating or had to continue working through the pandemic.

As the workforce returns after lockdown, many employers may have to make redundancies in the short to medium term to deal with increased costs and to keep their business afloat.

• When considering redundancies, employers should be careful not to unfairly target employees who raised concerns during the risk assessment process. 
• Such employees could bring an unfair dismissal claim under s.100 ERA 1996 or a discrimination claim under the EA 2010 if they are clinically vulnerable or clinically extremely vulnerable.
• To reduce the risks of any such claim, employers should ensure that they follow a full and thorough redundancy process and that employees are selected for redundancy based on clear, legitimate business reasons.
• Furloughed employees must receive statutory notice pay based on their regular wage, not their furlough wage. Statutory redundancy pay must also be paid on the same basis to employees with more than two years’ service.