In this blog, we consider the employment protections from discrimination and dismissal available to disabled people who are also shielding during Covid-19.

 

In March 2020, Public Health England (“PHE”) issued guidance on shielding and protecting people who are ‘clinically extremely vulnerable’[1].  Around 1.28 million people with specific medical conditions are clinically extremely vulnerable because their specific conditions place them at the “greatest risk of severe illness from Covid-19”[2]Although their age-group data does not seem to be available, many could be of working age.  By now, all these individuals will have received letters from the NHS or their GP notifying them of their status. Examples of clinically extremely vulnerable people include:

  • Solid organ transplant recipients;
  • People with specific cancers;
  • People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary (COPD);
  • People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as severe combined immunodeficiency (SCID), homozygous sickle cell);
  • People on immunosuppression therapies sufficient to significantly increase risk of infection;
  • Women who are pregnant with significant heart disease, congenital or acquired.

PHE’s advice to clinically extremely vulnerable people is to “stay at home at all times and avoid any face-to-face contact” to protect themselves, specifically stating: “do not leave your house”[3].  At the time of writing, their advice is to shield until the end of June, although the position is being monitored regularly[4].

Given the likelihood these people may remain at greatest risk of severe illness from Covid-19, the question arises whether or not they will be required to shield after lockdown is lifted, or perhaps, until a vaccine is available, which is presently reported to become available by mid-2021[5].

This poses particular challenges for people who are shielded and we consider the protections available to those who are both disabled and shielded against discriminatory practices whilst the guidance remains on-going.

 

Disability

 

Some people included in the above categories will be automatically classed as disabled under the Equality Act, such as those with cancer[6].  In general, the Equality Act also deems conditions, such as HIV and multiple sclerosis, as disabilities[7].

However, for some individuals, their health condition may meet the definition of a disability under the Equality Act 2010.  That is, if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities[8].  If the effect would be substantial but for corrective treatment, then it is deemed to have a substantial adverse effect[9].  Long-term means the effect has lasted at least 12 months; or likely to last 12 months; or likely to last for the rest of the person’s life[10].  Progressive[11] and recurring[12] conditions can also be disabilities. Take for example, conditions such as Crohn’s disease, lupus, and rheumatoid arthritis, all of which are likely to be disabilities under the Equality Act, are also conditions which are sometimes treated with immunosuppression therapies, and so individuals treated for such may be shielded too.

 

Discrimination arising from disability

 

An employer discriminates against a disabled person if the employer treats them unfavourably because of ‘something arising in consequence’ of their disability and the employer is unable to show that the treatment is a proportionate means of achieving a legitimate aim (unless the employer can show it did not know, or could not reasonably have been expected to know, that the employee had the disability)[13].  What is unfavourable treatment will depend on the circumstances of an individual case. For example, the employee may be dismissed, demoted, or excluded from work-related opportunities, because of something arising from disability.

For a disabled employee, the requirement to shield is likely to be ‘something arising in consequence’ of their disability.  Whether the unfavourable treatment is because of shielding involves examining the employer’s mind to determine what consciously or unconsciously was the reason for it. Even then, shielding only needs to be part of the reason for unfavourable treatment[14].

However, an employer could defend a claim if they did not know, and could not reasonably have been expected to know, that the employee had a disability. Alternatively, if the employer did know about the disability, they could argue that the treatment was justified as a proportionate means of achieving a legitimate aim. This is often described as the justification defence, and the test is an objective one according to which the a Tribunal will make its own assessment[15]The courts have said that employers who know about their employee’s disability would “be wise to look into the matter more carefully before taking the unfavourable treatment”[16].  For those being shielded, this is more important than ever.

 

Reasonable adjustments

 

Another protection is the employer’s duty to make reasonable adjustments[17].  Here, where a ‘provision, criterion or practice’ (“PCP”), a physical feature or need for an auxiliary aid puts a disabled person at a substantial disadvantage compared with non-disabled employees, the employer has a duty to take reasonable steps to avoid that disadvantage. The focus should be on ways in which the adjustments can retain people in employment. Guidance on the kind of considerations to help an employer decide whether to take particular steps are set out in the Employment Statutory Code of Practice[18].  These include, for example:

  • Whether taking any particular steps would be effective in preventing the substantial disadvantage;
  • The practicability of the step;
  • The financial and other costs of making the adjustment and the extent of any disruption caused;
  • The extent of the employer’s financial or other resources;
  • The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and
  • The type and size of the employer[19].

 There are two possible adjustments an employer may wish to consider for a disabled person shielding at home. An obvious one would be to allow them to work from home, although the ‘reasonableness’ of this will depend on the nature of the employee’s work. For example, it is unlikely to be reasonable for an industrial sewing machinist to take large equipment home, but a tailor could be given a smaller sewing machine to work from home. In the absence of a reasonable way to facilitate working from home, they could be furloughed. In this situation, applying the criteria to furlough, an employer would probably lack good reason to refuse to furlough a disabled employee who was shielding. Indeed, the Government’s guidance for employers (last updated on 30th April 2020) on the Coronavirus Job Retention Scheme states employers are “entitled to furlough employees who are being shielded or off on long-term sick leave. It is up to employers to decide whether to furlough these employees[20].

 

 Indirect discrimination

 

Indirect discrimination happens where an employer applies a PCP to their employees, but the PCP puts, or would put, employees with the disability, and other employees with the same disability, at a particular disadvantage, when compared to other employees. If an employer cannot justify the PCP to be a proportionate means of achieving a legitimate aim, it will be indirectly discriminatory. A PCP may be, for example, a requirement that all employees attend work, or asking employees to attend work to replenish resources to enable working from home, both of which will require a shielded person to leave their home. Although with indirect discrimination there is no requirement to show knowledge of disability on part of the employer, it is perhaps easier to formulate a claim as ‘discrimination arising from disability’ or a claim for ‘failure to make reasonable adjustments’ when considering disability and shielding together.

 

Discrimination by association

 

Direct discrimination is when an employer treats their employee less favourably because of a protected characteristic[21] However, this can also occur when an employer treats an employee less favourably because of their association with a person with a protected characteristic, as opposed to the employee having a protected characteristic. This type of claim is far from easy to establish but there may be circumstances where a parent, child, partner or carer of a shielded disabled person is treated less favourably. For example, supposing a shielded disabled person’s regular carer can no longer assist, so their partner needs to stay at home to provide that care instead. An employer treating the partner less favourably could amount to direct discrimination by association. Though at the very least, dismissal could be avoided because they can be furloughed, as the Government’s guidance states: “employees who are unable to work because they have caring responsibilities resulting from coronavirus (Covid-19) can be furloughed. For example, employees that need to look after children can be furloughed”[22].

 

Detriments and automatic unfair dismissal

 

As detailed in a previous blog, an employee may also consider their rights under the Employment Rights Act 1996 not to be subjected to a detriment or be automatically dismissed for refusing to return to work in “circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert”[23]. Being advised to shield is evidence of their reasonable belief and such claims can be considered alongside any potential claims in discrimination.

 

Time limits

 

As always, it is important for employees and workers to act swiftly because claims in the Employment Tribunal because there is a strict deadline of three months less one day from the last act of discrimination, dismissal or detriment, by which time the Claimant must have entered into ACAS Early Conciliation.

 

 

Conclusion

 

In this unprecedented time, employment and discrimination rights matter more than ever, particular for those who are already extremely clinically vulnerable. A second group of people classed as ‘At Risk’ are a larger group of people, around 19 million (who are normally at risk from influenza), are advised to practice strict social distancing[24].  Although they are not classed as shielded, practising strict social distancing will mean protection from issues such as dismissals and detriments, as well as disability discrimination (if they meet the legal definition), will be important for them too.

 

The Government and PHE’s guidance should be checked often, as it is updated regularly.

 

Date: 2nd May 2020

Please note this blog is not legal advice. It is a platform to share knowledge with employees and workers, as well those who assist them. If you require formal advice on similar problems or specific circumstances, please contact our clerks on 020 7452 8900.

 

[1] Public Health England Guidance, ‘Guidance on Shielding and Protecting People who are Clinically Extremely Vulnerable from COVID-19’, accessed 30th April 2020.

[2] NHS Digital, ‘Coronavirus (COVID-19): Shielded Patients List’, accessed 30th April 2020.

[3] Public Health England Guidance, ‘Guidance on Shielding and Protecting People who are Clinically Extremely Vulnerable from COVID-19’, accessed 30th April 2020.

[4] ibid.

[5] BBC Health, ‘Coronavirus Vaccine: When Will We Have One?’, 23rd April 2020.

[6] Sch 1, pt 1, para 6(1) Equality Act 2010.

[7] ibid.

[8] Section 6 Equality Act 2010. “Substantial” is defined in s.212 as “more than minor or trivial”.

[9] Sch 1, pt 1, para 5(1) Equality Act 2010.

[10] ibid, para 2(1).

[11] ibid, para 8.

[12]ibid, para 2(2).

[13] Section 15 Equality Act 2010.

[14] Sheikholeslami v University of Edinburgh[2018] IRLR 1090. See also Pnaiser v NHS England[2016] IRLR 170.

[15] City of York Council v Grosset[2018] IRLR 746.

[16] ibid.

[17] Section 20 Equality Act 2010.

[18] Equality and Human Rights Commission, Employment Statutory Code of Practice, 2011, p.85.

[19] ibid.

[20] HMRC Guidance, ‘Check if You Can Claim for Your Employees’ Wages Through the Coronavirus Job Retention Scheme’, accessed 30th April 2020.

[21] Section 13 Equality Act 2010.

[22] HMRC Guidance, ‘Check if You Can Claim for Your Employees’ Wages Through the Coronavirus Job Retention Scheme’, accessed 30th April 2020.

[23] Sections 44(1)(d) and 100(1)(d) Employment Rights Act 1996.

[24] NHS Digital, ‘COVID-19—High Risk Shielded Patient List Identification Methodology’, accessed 30th April 2020.