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COVID-19: thorny employment issues to watch out for

18 January 2021

Requiring employees to attend an employer’s work place during the current lockdown

The new legislation introduced on 5 January 2021 to implement the most recent national lockdown is contained in “The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021,” (the Regulations 2021) which amended the previous coronavirus restrictions “The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020.”

It is surprising to note, given the public conception about changes to the rules, that actually the Regulations 2021 impose no changes to the earlier Regulations 2020, insofar as the legal obligations surrounding the permissibility of employees to leave home for the purpose of attending work, as the permitted exception for leaving home “if reasonably necessary for the purposes of work”, is unchanged.

At present we are not aware of an update being published by the Health and Safety Executive as to risk assessments. What has however changed is the sort of language being used in the government guidance, which is clearly aimed to change behaviours (but which does not stand in place of legislation) regarding when people can leave home. It provides that:

“You must not leave or be outside of your home except where you have a ‘reasonable excuse’.”

A ‘reasonable excuse’ includes:

  • Work – you can only leave home for work purposes where it is unreasonable for you to do your job from home, including but not limited to people who work within critical national infrastructure, construction or manufacturing that require in-person attendance.

It is highly likely that many employers have understandably now changed their approach, in terms of not requiring employees to attend work, given the perception of the increased risk to health caused by the new virus strain. Far fewer employees are likely to be going into work than prior to the latest lockdown.

It is also clearly the case that employees will be even more vigilant/concerned in terms of their own perception as to risk to their health, if they are being required to attend work. It is important to remember that all employees (regardless of the length of service) are protected from detriment and dismissal if they raise concerns, leave or refuse to return to a place of work, or take appropriate steps to protect themselves or other persons in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert.

So for those employers still requiring employees to come into work, clearly it is important that they obtain their full buy in and cooperation to do so.

Long COVID and disability discrimination

Tens of thousands of workers are suffering from the debilitating impact of long COVID, significantly impacting upon their ability to work. It is important for employers to consider whether (and if so at what point) they may acquire disability protection under the Equality Act 2010 (EqA).

Significant and valuable protection is given to disabled employees/workers under the EqA. This makes it unlawful (amongst other things) to discriminate, by subjecting them to unfavourable treatment because of something arising in consequence of disability (without objective justification) and imposes a positive obligation on employers to comply with the duty to make reasonable adjustments, where a disabled job applicant or employee is placed at a substantial disadvantage.

However, in to order access these valuable protections it is a pre-requisite that an employee can show that they have or had a disability. An employee would need to demonstrate that they have a physical or mental impairment, that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Commonly reported symptoms of long COVID include respiratory symptoms, cardiovascular symptoms, generalised symptoms (fatigue, pain), neurological symptoms (cognitive impairment, ‘brain fog’, loss of concentration or memory issues) and headaches. Whilst cumulatively and in isolation these symptoms may well be seen to be impairments that are having a substantial adverse effect on an employee’s ability to carry out normal day-to-day activities, the unknown factor is how long these symptoms are likely to persist.

In order to satisfy the disability test set out in the EqA, the employee must demonstrate that their impairment will have a long-term adverse effect. Therefore, under the EqA the impairment must have (i) lasted at least 12 months, or (ii) the period for which it lasts is likely to be 12 months or for the rest of the life of the person affected.

Self-evidently, employees won’t yet be able to demonstrate that they have been suffering from long COVID for more than 12 months. The real question that emerges however is how long will it be before physicians will accept that the symptoms that have emerged from developing the condition are likely to continue beyond 12 months?

Employers should be vigilant, when dealing with employees who are diagnosed with long COVID, to ensure that they are alive to the significant obligations and protections that flow from a finding that an employee is in fact disabled under the EqA and act accordingly, in terms of the manner in which they do deal with affected employees (e.g. by making some reasonable adjustments). Whilst there will remain a degree of uncertainty, particularly over the next six months (as more becomes known about the impact of long COVID) as to whether in any given situation a disability finding will be made, it would be prudent to assume that employees impacted by COVID, will be treated with a sympathetic ear, should the matter come before an employment tribunal for adjudication.

Furlough scheme changes

The furlough scheme currently will run until 30 April 2021. A key recent change to the furlough scheme is that employers are unable to claim reimbursement of salary through the furlough scheme for employees who are serving their notice. This currently only applies to claims for salary between the period between 1 December 2020 and 31 January 2021, although we expect it to be extended until the end of the furlough scheme.

Employers should also be aware that from 26 January 2021 HMRC will publish a list of employers who have made use of the scheme from 1 December 2020. This list will include employer names, an indication of the value of the claim and the company number and will be updated on a monthly basis which could lead to reputational issues for high profile employers. Claim details will not be published where employers are able to show and provide evidence that doing so would result in serious risk of violence or intimidation to certain relevant individuals (including individual employers, directors, officers or employees) or anyone living with them.

School closures – is flexible working here to stay ?

With the closure of schools, many working parents will be struggling again to balance childcare and home schooling alongside work. Employers should consider ways in which they can be flexible and help staff balance these commitments. This can include agreeing to flexible or reduced hours, additional paid or unpaid leave or where flexibility is not possible and the employer is eligible, considering placing the employee on furlough or flexible furlough leave.

It appears that one of the lasting impacts of COVID-19, is that many employees will have become accustomed to enjoying even greater flexibility in terms of their work patterns. Many employers will find it hard to ‘put the genie back in the bottle’, even after the worst impacts of the virus have subsided. The difficulty is that there is unlikely to be any immediate changes to the law surrounding flexible working requests and many employees may need to vote with their feet, if their employer proves to be inflexible in the manner in which such requests are dealt with in the longer term.

“No jab, no work contracts” and philosophical beliefs

The Pimlico Plumbers decision to insist that its contractors must have the COVID vaccine in order to be offered work in the homes of Pimlico clients may be open to challenge under the Equality Act  (EqA) as unlawful discrimination. This could be on the grounds of individuals asserting a deeply held philosophical belief that this vaccine is unsafe or that more broadly they do not support vaccination more generally. Veganism has been held by a tribunal to be a protected philosophical belief so objection on the grounds that many vaccines are produced using eggs may be an issue. The EqA protects religious or other deeply held beliefs and the parameters of the latter are the subject of a number of ongoing challenges and tribunals do appear willing to give a wide interpretation to the concept of a deeply held belief.

Disability discrimination issues may arise too if this rule is enforced against those with a history of severe allergic reactions or other medical issues which might indicate against acceptance of vaccination.

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