We have all heard of claims for stress at work – bullying, workload issues, grievances ignored etc – but in true COVID style there is now a new strain of the problem for employers and lawyers to be aware of. Lockdowns have given many employees the opportunity they have been wanting for some time but which their employers have denied them. Businesses are still having to restructure working practices both on an ad hoc basis and also in the longer term as a result of the forced experiment lockdowns have thrust upon us. Notwithstanding all the uncertainty around right now, one thing is clear: the working environment will never look quite the same again.
But what of employee welfare under these different working practices?
Some workers are carrying out their duties from home because they have underlying health conditions placing them in a category of vulnerability to some degree and may be required to work from home due to this susceptibility. These people may well be disabled under the EqA s.6 and expect reasonable adjustments. Some may have chosen to work from home due to insufficient measures having been implemented in the workplace to keep them reasonably safe from infection. These people may have made a Protected disclosure in raising this issue with their employer and benefit from the protection of the whistleblowing legislation at s.47B ERA. More of the whistleblowing scenario in detail in another article.
Many workers at the time of writing are at home under lockdown guidelines of having to work from home if they are able. This could be neither party’s choice and the worker would need ideally to be happy spending long periods of time on their own, be self-disciplined and motivated, be confident working without supervision, be able to separate work and home life and have a resilient personality. Of course this will not always be the case and compounding this problem is the fact that the home environment will not necessarily be ideal: maybe not set up in terms of IT and other office infrastructure, or possibly bedevilled by distractions like home schooling.
Employers should consider the ACAS checklist “Homeworking – a guide for employers and employees” which gives helpful guidance on providing support, supervision and lines of communication as well as assessing employee workload and health remotely. By way of example, the scope of any support should be broader than IT – staff should know how to reach their manager in an emergency and get support from colleagues who will be unable to see they need help. Managers will need to be sensitive to the tone of emails and phone conversations. An understanding of how the employee will be managed and how their performance will be measured in the altered environment needs to be established.
If these workers cease to be vulnerable, or (if!) lockdown ends, some employees will still not want to return to the office and some employers will want to get their homeworkers back so what do we need to be aware of?
Anyone with extreme vulnerability will likely be disabled under the EqA. A demand of anyone who is extremely clinically vulnerable to return to the workplace will probably be discriminatory as a failure to make reasonable adjustments. An employee also has protection against victimisation or action short of dismissal (ss.44 and 100 ERA96) in respect of certain health and safety matters. An employee may leave work if they have a genuine and reasonable belief that they are in serious and imminent danger and they cannot avert the danger. The employer may not subject that employee to any detriment as a result. A good employer risk assessment will be required to counter such employee arguments. While this will be more relevant at some point in the future when there is a lower risk of infection and serious symptoms, a disabled employee would probably be able to argue that it would be a reasonable adjustment to allow them to wear a face covering.
Home working will be an obvious possible reasonable adjustment for a disabled employee, as would finding them a different role that they can do from home. Just because someone is not on the government list in relation to vulnerability does not mean they are not disabled under EqA, and the list of conditions in the Act is not exhaustive either.
Even though a disabled person is shielding, they would not be treated less favourably because of that disability (s.13 EqA – direct) by being made to return to the workplace as the comparator would be a non-disabled person who would be asked to return too and therefore treated the same. That same person, if they were dismissed or disciplined for shielding, would have suffered a detriment because of something arising in consequence of their disability (s.15EqA) – shielding arises from the disability and is a behaviour/decision flowing from it but is not the disability itself.
If you have any questions about these issues and how they impact you or your clients please don’t hesitate to get in touch with John Ratledge or his clerks for advice or representation. His clerks are available by emailing firstname.lastname@example.org or by telephone on 01473 214481.< Back to Articles