Can an employee be forced to attend their workplace during COVID-19?

On 4 January 2021 national lockdowns were announced in England and Scotland in response to the COVID-19 pandemic. The Government’s guidance was updated on 6 January 2021 to reflect this. Part of this guidance advised as follows: “you may only leave your home for work if you cannot reasonably work from home.”

In the context of these circumstances, the legal implications of employers asking their employees to physically attend the workplace will be explored. As part of this, we will consider the differing implications where an employee:

a)     is non-vulnerable, non-disabled and does not have childcare or caring responsibilities;
b)     is ‘vulnerable’ within the context of the COVID-19 pandemic;
c)     is disabled but not vulnerable;
d)     has childcare responsibilities;
e)     has caring responsibilities.

For the purposes of this opinion piece, the following will be assumed:

• the relevant employee has expressed concerns over their health and/or the health of others;

• the employee has been working from home since around March due to the COVID-19 pandemic;

• the employer’s request for the employee to attend the workplace is a reasonable one.

Relevant Law and Guidance

Law

The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 were introduced to enforce the lockdown and related restrictions announced on 4 January 2021. These Regulations came into force on 6 January 2021.

In short, these Regulations amended the previous tier-based system to create a stricter set of restrictions. For example, whilst people are still permitted to leave their homes for exercise, “open air recreation” is no longer permitted. They do not say anything specific about work and the workplace. This is instead dealt with in guidance, as set out below.

Employment Rights Act (“ERA”) 1996:

a.      Section 44 (health and safety cases);
b.      Section 100 (health and safety cases);
c.      Section 135 (redundancy payments);
d.      S147 (lay-off);
e.      S148 (eligibility for redundancy payment in the case of lay-off).

Equality Act 2010 (“EqA2010”):

a.      Section 4 (the protected characteristics);
b.      Section 5 (age);
c.      Section 6 (disability);
d.      Section 11 (sex);
e.      Section 13 (direct discrimination);
f.       Section 15 (discrimination arising from disability);
g.      Section 19 (indirect discrimination);
h.      Section 20 (duty to make adjustments for disabled persons);
i.       Section 21 (failure to comply with duty to make adjustments for disabled persons);
j.       Section 26 (harassment);
k.      Section 27 (victimisation);
l.       Section 39 (prohibition of discrimination by employers against employees).

Guidance

Restrictions relating to work are not mentioned explicitly in the new Regulations but are instead dealt with in accompanying guidance.

There is general guidance relating to work and other matters: ‘National lockdown: Stay at Home.” This guidance states that employees should only attend their workplace where they cannot reasonably work from home. The guidance does not define reasonableness in this context, however, it does give examples of sectors where going into work will likely be reasonable such as manufacturing, construction, and childcare. Based off these examples it can be inferred that reasonableness relates to whether it is possible for employees to carry out their work duties in a location other than their workplace.

The guidance also states that employers should take every possible step to facilitate their employees working from home, including providing suitable IT equipment to enable remote working. Where employees cannot work from home, the guidance encourages employers to take steps to help employees avoid busy times/routes on public transport when travelling to/from work.

The Government’s sector-specific guidance, ‘Working safely during Coronavirus (COVID-19),’ was also updated on 7 January 2021. This states that if employers choose to stay open, or to reopen, they must have undertaken a risk assessment to meet the government’s guidance on making workplaces COVID-safe. Risk assessments must be “suitable and sufficient.” Employers also have a duty to consult on health and safety matters and should discuss the risks surrounding COVID-19 and how they will manage them with their employees.

As well as carrying out risk assessments, the Government lays out 8 steps employers can take towards managing COVID-19 risk in section 1.1 of this guidance. These include increasing the frequency of hand-washing, enforcing social distancing, and ensuring employees and visitors who are unwell stay at home.

The Government has also updated its guidance for those classed as clinically extremely vulnerable, ‘Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19.’ This guidance states that those who are clinically extremely vulnerable[1] should resume shielding. Those shielding should not go into work. If someone is clinically extremely vulnerable but lives with people who are not, those people can continue to go into work if they cannot work from home.

Discussion

In light of the law and guidance outlined above, the issue of whether an employer can force an employee to attend their workplace during the current COVID-19 lockdown will now be addressed from the perspective of the following categories of employee: a) non-vulnerable, non-disabled employees who do not have childcare or caring responsibilities; b) vulnerable employees; c) non-vulnerable employees with a disability; d) employees with childcare responsibilities; e) employees with caring responsibilities.

a)    Non-vulnerable, non-disabled employees who do not have childcare or caring responsibilities

S44(1)(d) ERA 1996 states at follows:-

“44 Health and safety cases.

An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—

…(d) 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, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e)     in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”

Pursuant to this subsection, every employee has the right not to suffer detriment if they leave, or refuse to attend their place of work, where they reasonably believe there is a risk of being exposed to serious and imminent danger. Every employee also has the right not to suffer detriment if they took (or proposed to take) appropriate steps to protect themselves or others from danger that they reasonably believe is serious and imminent.

Section 44(1)(d) is the more relevant provision for the purposes of this opinion piece since it specifically relates to an employee leaving or refusing to return to the workplace. S44(1)(d) can be broken down in the following way:

(i) First, there must be circumstances of danger, which the employee could not reasonably be expected to avert.

(ii)  Second, the employee must have a reasonable belief that this danger has two attributes: (a) imminence and (b) seriousness.

(iii) Third, the following conduct is protected: (1) leaving the place of work (or the dangerous part of it); (2) proposing to leave the place of work (or the dangerous part of it); and (3) refusing to return to the place of work (or the dangerous part of it) in circumstances where the danger persists.

The focus here is thus not on whether a serious and imminent danger is actually present, but rather on whether the employee in question is reasonable in their belief that such a danger exists.

Take, for example, a scenario in which a construction worker has been asked to attend their workplace but their employer has seemingly not carried out a risk assessment, involved their employees in consultation over COVID safety, nor made clear how they would be following the Government-recommended steps for making the workplace COVID-secure. In this situation, the employee would arguably be reasonable to believe that a serious and imminent danger was present due to the risk of contracting COVID-19. Under s44(1)(d) ERA 1996, they would thus be protected from facing repercussions if they choose to leave, or not attend, the workplace. They would be entitled to stay at home on full pay for as long they reasonably believed the danger remained.

The circumstances are different where an employer has carried out a sufficient risk assessment, consulted with employees over safety measures, and put in place the steps recommended by the Government to keep the workplace COVID-secure. Here, it is arguable that an employee could be viewed as unreasonable for believing there was a serious and imminent danger and choosing not to attend the workplace because of it.

Yet the context of the COVID-19 pandemic is a unique one that requires further examination.

The case-law around s44 makes clear that the relevant danger for the purposes of section 44 need not be to employees, but could be to any person: Von Goetz v St Georges Healthcare NHS Trust EAT/1395/97, paras. 26-27. This is particularly pertinent in the context of COVID-19.

Assessment of reasonableness would require the tribunal to have regard to all the circumstances of the case, including official advice and the approach the employer had taken to consulting with its employees about COVID safety. The employer’s belief is technically irrelevant to the application of s44 (see Oudahar v Esporta Group UKEAT/0566/10/DA, para. 27). It therefore will not be sufficient for the employer to demonstrate that it has satisfied itself of the safety of the workplace.

When considering ‘imminence,’ merely hypothetical risks are not sufficient (see e.g. Purnell v Ashdown Medway Accommodation Trust Case No. 2300001/2018, para. 19-20). Employees seeking to rely on s44(1)(d) will thus likely need to prove more than the continued existence of COVID-19.

Assessing the ‘seriousness’ element of the employee’s belief will require consideration of the prevalence and lethality of COVID-19 within the local area,[2] the inherent risk of transmission within that particular working environment, and how effective the protection the employer is able to offer is.

To rely on s44(1)(d), employees must also show that they could not be reasonably expected to avert the danger in question. The fact that the government has advised employers to mitigate COVID-19 risk within workplaces will likely be relevant here. It is arguable that given the onus that has been placed by the Government on employers in terms of making their workplaces COVID-secure, an employee would be unlikely to be reasonably expected to avert the danger personally.

It is important to note that this discussion of s44(1)(d) likely applies to all categories of employee considered in this opinion piece, as any employee could raise a belief in a serious and imminent danger as a reason for not attending their workplace. Where personal circumstances will likely become relevant is at the point of the Tribunal assessing a particular claimant’s ‘reasonable belief in a serious and imminent danger.’ Specific considerations arising from s44(1)(d) will be outlined in relation to each subcategory of employee explored below.

As s44(1)(d) has not yet been considered by the Courts or Tribunals in the context of COVID-19, one cannot say with certainty how it should be applied. In theory, where an employer takes the view that the employee does not fall within the s44(1)(d) protections, they could subject that employee to disciplinary action. However, given the legal issues surrounding s44(1)(d) outlined above, employers should be cautious when dealing with such employees.

If an employer decided to take disciplinary action against an employee who chose not to come to work, that could later be held to be unfair or disproportionate by an ET and employers could face unfair dismissal claims. In this context, it is important to remember that an employee can claim automatic unfair dismissal if the reason (or, if more than one, the principal reason) for the dismissal is that:-

• 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, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

• in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The above right derives from section 100(1) of the ERA 1996. Its wording is akin to the wording of section 44(1)(d) and (e) of the ERA 1996. The right not to be unfairly dismissed for health and safety reasons applies to an employee regardless of length of service (ERA 1996, s.108(1) and (3)(c)) and there is no limit on the amount of the unfair dismissal compensatory award that an employee who succeeds with such a claim can claim for (ERA 1996, s124(1) and (1A)). Again, as s100(1)(d) or (e) has not yet been considered by the Courts or Tribunals in the context of COVID-19, one cannot say with certainty how it should be applied.

Employers might consider to offer unpaid leave if they are able to. However, this risks a claim that an employee has suffered a detriment under s44 ERA (on which see above).

Where an employee does not consent to taking unpaid leave, the employer could opt to ‘lay-off’ the employee for the time being. This is akin to a temporary termination that allows the employer to later re-employ the employee. Employers should note that employees who are laid-off within the meaning of the ERA 1996 may be entitled to a redundancy payment.

Under s147(1) of the ERA 1996:

“an employee shall be taken to be laid off for a week if:-

(a)he is employed under a contract on terms and conditions such that his remuneration under the contract depends on his being provided by the employer with work of the kind which he is employed to do, but

(b)he is not entitled to any remuneration under the contract in respect of the week because the employer does not provide such work for him.”

In order for the lay-off provisions to apply, the contract thus has to be of the type described in ss.(1)(a), for example a contract for piecework. Additionally, the employer must not have provided the employee with work in the relevant week. It has been held that ss.(1)(b) applies where an employer offers an employee work but the offer is declined so that the work is not actually done (Spinpress Ltd v Turner [1986] ICR 433, EAT). This is particularly relevant given that we are dealing with a situation where an employee is refusing to attend the workplace despite the fact the employer is offering them work.

Where a scenario fits within the s147(1) ERA 1996 definition of lay-off, an employee may be entitled to a redundancy payment (s135(1)(b)). Such an employee is eligible provided notice of their intention to seek a redundancy payment is given to their employer (s148(1)(a)) following their being laid-off (s148(1)(b)), and they have been laid-off for four or more consecutive weeks on the day the notice is given (s148(2)(a)), or for a series of six weeks or more with a thirteen-week period (s148(2)(b)).

       b)   Vulnerable Employees

As outlined above, new guidance states that those who are clinically vulnerable must resume shielding. If they are able to, they should work from home. Where they cannot work from home, it would be against Government guidance for their employer to require them to attend the workplace.

In light of this, shielding employees can be placed on furlough under the Coronavirus Job Retention Scheme (“CJRS”), as updated on 5 January 2021. However, their employer is not obligated to furlough them. If they cannot be furloughed, shielding employees may be able to claim Statutory Sick Pay or Employment Support Allowance using their shielding status as evidence that they cannot go to work.

There is also the possibility that if an employer required an employee aged 70 and over to attend work, this could be unlawful discrimination on the ground of age (whether directly or indirectly), given that those aged 70 and over are within the category of those particularly vulnerable to COVID-19. However since an employer may well have few or no employees aged 70 and over, discrimination claims on the grounds of disability or sex are more likely to arise if an employer requires an employee to attend the workplace during the pandemic. These potential claims are discussed below.

       c)    Non-vulnerable employees with a disability

A situation may arise in which an employee is not classed as vulnerable but has a disability within the definition of s6(1) of the EqA2010. This states as follows:-

       “(1)A person (P) has a disability if—

       (a)P has a physical or mental impairment, and

       (b)the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

For example, an employee may be a long-term sufferer of Post-Traumatic Stress Disorder (PTSD). This would mean they were not vulnerable within the context of the COVID-19 pandemic but were disabled within the meaning of the EqA2010.

Were a s44(1)(d) ERA 1996 type situation to arise, an employee’s disability would likely be relevant when assessing whether they had a reasonable belief in a serious and imminent danger. A mental health condition like PTSD may lead an ET to question the reasonableness of an employee’s belief and their ability to accurately assess danger. However, the ET may also be sympathetic, for example in a situation where such an employee believed the ‘danger’ posed was the risk of a serious decline in their mental health were they to have to attend their workplace during lockdown. Employers are thus encouraged to be cautious when deciding whether or not to take action against disabled employees who they believe are not protected by s44(1)(d) and (e) and/or s100(1)(d) and (e).

Another consideration for employers to take into account in this scenario is the potentiality of claims under the EqA2010. Were an employer to force employees to attend their workplace, this may have a disparate effect on those with disabilities and thus create a risk of indirect discrimination claims under s19 EqA2010. This states as follows:-

“19 Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

(3)The relevant protected characteristics are—

age;
disability;
gender reassignment;
marriage and civil partnership;
race;
religion or belief;
sex;
sexual orientation.”

The requirements of ss2(a)-(c) are arguably met in the situation where all employees were required to come to work but employees with disabilities, such as PTSD, were particularly disadvantaged due to, for example, the risk to their future mental health in attending the workplace. An employer may be able to argue that its actions were a proportionate means of achieving a legitimate aim (ss2(d)) in that requiring employees to attend the workplace where they could not work from home was essential to keeping the business running, and COVID-security measures had been put in place. However, ss2(d) has not yet been tested in the context of the COVID-19 pandemic and so it cannot be said with certainty that the Courts or Tribunals would interpret it in this way.

An employer can also be held to have discriminated against a disabled employee under s21 EqA2010 where it has failed to comply with the duty to make reasonable adjustments contained in s20.

Also relevant here is Rochford v WNS Global Services [2017] EWCA Civ 2205 (CA) where it was held that the Claimant employee was not entitled to rely on what was found to be discriminatory treatment as a reason to refuse to work. This perhaps supports the view that employees would be wrong to refuse to work because they thought their employer was discriminating against them by requiring employees to attend the workplace. However, it should be noted that this decision was dependent on the details of the case and should thus not be taken as a green light to dismiss all employees refusing to work. There may be circumstances, for example around health and safety, where an employee may be justified in their refusal (see para. 21 of the judgment). The employer’s intentions were also held to be relevant in that case, as well as whether they consulted with the disabled employee in the process of deciding on reasonable adjustments.

Employers dealing with non-vulnerable employees with disabilities are thus encouraged to consider the specific needs of those employees and their personal difficulties around attending the workplace. Where possible, reasonable adjustments should be made, with the employee consulted during the process. Employers should also be cautious when taking disciplinary action against, or dismissing, any disabled employees who refuse to attend the workplace owing to the risk of future ET claims encompassing complaints of discrimination as set out above and harassment under section 26 of the EqA2010. In this particular context, it should also be noted that an employee who had complained to the employer that requiring the employee to attend the workplace was disability discrimination, would have done a protected act that, in turn, could mean any subsequent disciplinary action taken by the employer against the employee could be an act of victimisation under section 27 of the EqA2010.

       d)   Employees with childcare responsibilities

Under the new lockdown restrictions, schools have closed to most pupils. This means that many people are facing increased childcare responsibilities which may prevent some from being able to attend their workplace, even where it is safe for them to do so.

If an employee is “caring for children who are at home as a result of school and childcare facilities closing” and is unable to work, they can be furloughed under the updated guidance on the CJRS. Whilst employers are not obligated to take this course of action, furloughing employees is recommended as requiring them to attend work may put employers at risk of constructive unfair dismissal claims.

Indirect discrimination claims under s19 EqA2010 may also arise in this scenario were an employer to require a woman employee with childcare responsibilities to attend the workplace.

Looking at s19(2)(b), it is relevant that it has previously been successfully argued in the Employment Appeal Tribunal that because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can be indirect sex discrimination (XC Trains Ltd v CD & Anor UKEAT/0331/15/LA). However, this relied on the women employees in that case proving a particular disadvantage on an evidential basis. Women employees in this scenario would have to do the same in order to be able to rely on s19. Were this to be made out, a particular employee would then have to show that they had personally suffered the disadvantage (ss.(2)(c)).  It would then fall to the employer to prove that their actions were the proportionate means of achieving a legitimate aim (ss.(2)(d)).

The possibility of such claims (allied with complaints of harassment and victimisation) further suggests that furlough is the best approach where employers are faced with employees who refuse to attend the workplace due to their childcare responsibilities.

       e)    Employees with caring responsibilities

If your employee has caring responsibilities that mean they cannot attend the workplace, they may also be eligible for furlough under the updated guidance on the CJRS. This is the case where the caring responsibilities are the result of the COVID-19 pandemic, for example, where the employee has to care for a vulnerable individual in their home.

Further to the discussion around s44(1)(d) ERA 1996 set out above, specific issues may arise in relation to employees with caring responsibilities. Aside from the demands of these responsibilities, they may refuse to attend the workplace due to the risk of them becoming infected with COVID-19 and potentially passing it on to the vulnerable person who requires their care. This would likely be a factor that would be taken into account by the ET when assessing whether the employee had a reasonably held belief in a serious and imminent danger. Consideration of the ‘seriousness’ and ‘imminence’ elements may be particularly affected were a claimant to have caring responsibilities that required them to be in direct contact with a vulnerable person.

In light of this, furloughing employees that fall within this category is recommended.

This would also serve to mitigate the risk of potential ET claims which may arise if an employer were to require the employee to attend the workplace or decided to take disciplinary action. For example, were the person the employee cared for to have a disability within the meaning of s6(1) EqA2010, claims for associative disability discrimination could arise. S6(1) defines ‘disability’ as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities. Associative disability claims have been possible since the ECJ’s decision in Coleman v EBR Attridge Law C-303/06, IRLR 88 where it was held that an employer had directly discriminated against their employee due to her child’s disability, contrary to s13 taken with s39. However, it should be noted that the duty to make reasonable adjustments does not apply in cases of associative disability discrimination (Hainsworth v Ministry of Defence [2014] EWCA Civ 763). There have also been no cases of indirect discrimination (s19 EqA2010) on the basis of associative disability.

Thus any claim for associative disability discrimination would likely have to fit within s13(1) EqA2010. This states as follows:-

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

This could only apply in the present scenario were an employer to make a decision directly in relation to an employee who refused to attend the workplace due to their caring responsibilities, for example, a decision to take disciplinary action or to terminate that employee. Where such a decision was present, the employee would then have to raise an arguable case that the decision had been made on the basis of their caring responsibilities, and thus associative disability. It would then fall to the employer to prove that the decision was not made because of the protected characteristic of disability – in the current scenario, that could be difficult.

It is thus recommended that employers furlough employees who fall into this category. This would serve to avoid any issues arising from ss44(1)(d) and (e) and 100(1)(d) and (e) ERA 1996, and any potential EqA2010 claims.

Conclusion

Overall, due to the unique and capricious nature of the COVID-19 pandemic and the legal challenges surrounding it, employers are encouraged to err on the side of caution when deciding whether or not to require their employees to attend the workplace.

As outlined above, those shielding should not be required to come in and should be furloughed if they cannot reasonably work from home. The same applies to employees with childcare and caring responsibilities who also now fall under the updated CJRS.

The situation is more complicated for a non-vulnerable, non-disabled employee with no childcare or caring responsibilities who is concerned about their health and thus does not want to attend the workplace. Due to the fact that ss44(1)(d) and (e) and 100(1)(d) and (e) and their related protections have not yet been assessed by the Courts or Tribunals in the context of COVID-19, employers should be wary of taking decisive actions against employees in this scenario in order to properly mitigate the risk of future claims.

In any event, all employers who wish to keep their workplace open should follow the Government’s guidance on COVID-security incredibly closely. They should also communicate with employees and any trade union recognised by the employer (particularly workplace Health and Safety representatives) to make sure they are adequately informed and consulted about mitigating COVID risk. Employers are also encouraged to keep an adequate record of their efforts in this respect as this will help to illustrate the steps they have taken in relation to COVID-safety.

[1] ‘Vulnerable’ is defined in section 2(1) of the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 as (a) any person aged 70 or older; (b) any person aged under 70 who has an underlying health condition; (c) any person who is pregnant.

[2] When assessing this risk, local data on COVID-19 can be found by visiting the following link and selecting ‘regions’ or ‘local authorities’ from the drop-down menu (accessed by clicking ‘United Kingdom’) – https://coronavirus.data.gov.uk/details/cases.