Refusing to return to work because of Covid-19: the potential for discrimination

Changez Khan – Barrister at Farrar’s Building

Please take time to read the article below, Changez Khan is the Barrister who represented Stephen Morris, our General Secretary, in his case against his former employer. It is one of the 3 cases Changez Khan refers to at the end of his article, winning the case at the Court of Appeal by a unanimous decision of the 3 Judges, confirming our General Secretary was unfairly dismissed by reference to both Section 152 of Trade Union and Labour Relations (Consolidation) Act 1992, and Section 98 of Employment relations Act 1996.

As many employees are being instructed to return to their workplaces today, some are likely to object on health grounds. So what happens if there is a stand-off? Can an employer force an employee to return? If he refuses, can it discipline him, dock his wages or even dismiss? If an employer fails to take action, what message might that send out to other employees? And where do employees stand – do they have the right to refuse? Could they bring a claim in the Employment Tribunal if they are pressured, penalised or dismissed?

There is an obvious potential for health-and-safety based claims (ss.44 and 100 of the Employment Rights Act 1996), but there is also a real risk of discrimination claims under the Equality Act 2010. In this article I focus on the latter. Let’s consider how the scope for discrimination arises; then go through some worked examples; and finally, offer some practical advice for both employers and employees.

Covid-19 and the potential for discrimination

People’s immunity to Covid-19 varies hugely: some of us are more vulnerable than others. The Government’s recent guidance, “Our Plan to Rebuild” sets out at Appendix B the categories of people it considers “clinically vulnerable” or “clinically extremely vulnerable”. Discrimination lawyers will be quick to note that many of the people in these categories are also legally protected from discrimination at work by the Equality Act 2010. Science and discrimination law overlap. For example:

  • people over 70 are particularly vulnerable; cf they are also protected against age discrimination
  • people with underlying ill health are at higher risk; cf many of them will be protected against disability discrimination
  • pregnant women are at higher risk; cf they are protected against discrimination on grounds of pregnancy.

More controversially, however, is race also a risk factor? According to figures from the Office for National Statistics the death rate amongst BAME patients is disproportionately high. For example, when compared to people from a white background, a black person with Covid-19 is 4 times more likely to die and an Asian person 3.5 times more likely to die.

Likely discrimination claims – some worked examples

The unequal impact of the virus on certain groups means that any return to work also has the potential to create a discriminatory impact. I predict the most likely claims will be:

1.    Indirect discrimination (s.19 Equality Act 2010)

2.    Discrimination arising from disability (s.15 Equality Act 2010)

3.    Victimisation (s.27 Equality Act 2010)

Let’s consider some worked examples:

Example 1: claim for indirect age discrimination under s.19 EqA.

A 68-year old headmaster refuses to return to work at school because he considers himself in the higher-risk category. Can he argue his employer’s return to work policy amounts to indirect age discrimination?

An Employment Tribunal could properly reason as follows:

  • The employer’s instruction to its staff to return to work is a “provision, criterion or practice” (PCP). This PCP has a disproportionate impact on older employees. If they contract Covid-19 at work, the health consequences are likely to be more serious for them than for younger employees. That is a scientific fact.
  • But can a 68-year old show he fits into the higher-risk category? According to Government guidance, the “clinically vulnerable” group includes those “aged 70 or older”. Whether or not 70 is the only correct place to draw the line is a moot point. It is unlikely an Employment Tribunal would apply the Government’s figure rigidly as if it were a threshold, however, an employee contending for an alternative cut-off age would still have to base that on science.
  • Is the PCP justified? An employer could try to run a defence under s.19(2)(d) by arguing its PCP is a “proportionate means of achieving a legitimate aim” (PROMALA). The policy would certainly be pursuing a “legitimate” aim: the aim of having a well-staffed school. But are the means “proportionate”? This will depend on whether the employer has explored other alternatives which reduce the exposure of its older staff? For example: could the deputy head take over the headmaster’s face-to-face duties (classroom teaching, assemblies, chairing meetings)? Could the headmaster work remotely or set up in an office that is physically distanced from the rest of the school? A blanket policy will probably be indefensible, whereas a more nuanced one will stand a better chance.

Example 2: claim for discrimination arising from disability under s.15 EqA.

A diabetic employee refuses to return to work in a factory because she is in the “clinically vulnerable” category. Her employer gives her a formal warning for refusing to attend. Is this lawful?

An analysis of her claims is as follows:

  • There is no claim for direct discrimination (s.13 EqA). The reason for imposing the sanction was not because the employee was diabetic as such.
  • However, there probably is a claim for discrimination arising from disability (s.15 EqA). Imposing a disciplinary sanction certainly counts as “unfavourable treatment”. Moreover, the sanction is imposed “because of something arising in consequence of [the employee’s] disability”. She refused to attend because of her vulnerable status and that arises “in consequence of” her disability.
  • Can the employer justify the sanction as a proportionate means of achieving a legitimate aim (PROMALA)? The aim of a warning may well be legitimate: to encourage an employee to work. However, the real issue will be proportionality: unless the employer has listened to the employee’s concerns, taken on board medical advice and explored alternatives before acting, then the defence is likely to fail.

Example 3: claim for victimisation under s.27 EqA

An ethnic minority employee believes it is too risky to return to work given the high death rate amongst people from a BAME background. When he tells his manager, he is dismissed. Is that discrimination?

Suggested legal analysis:

  • There is no claim for direct discrimination (s.13 EqA). The employee was not dismissed because of his race. The employer would argue that any wilfully absent employee – regardless of their race – would have been dismissed.
  • However, there may still potentially be a claim for victimisation (s.27 EqA). The employee will be considered to have done a “protected act” if he told his manager the instruction to return to work was discriminatory and put him at greater risk compared to others because of his race. It is irrelevant whether or not there is a proven clinic between race and morbidity – here, the science does not matter. What matters in law is that the employee made his allegation of discrimination in good faith.
  • The real issue will be: why did the employer dismiss? If the manager dismissed because he took personal offence at being accused of racism, then the reason for dismissal is the protected act (i.e. the complaint of discrimination). The law prohibits such retaliation and the decision to dismiss may be held to be victimisation.

Conclusion – some practical tips

When an employer asks staff to return to work, it must be alive to the risk of discrimination. Employees too must know when the law protects them. Discrimination can be entirely inadvertent and unwitting, but still unlawful. Here are my tips:

1.    A blanket “return to work” instruction, which is given uniformly to all employees, will probably have a discriminatory impact. It is prima facie indirect discrimination. Therefore, an employer must think carefully before issuing that instruction and it must come armed with its PROMALA defence before it is challenged.

2.    Where an employee refuses to return because he is “clinically vulnerable” (or believes himself to be), the employer must listen sympathetically. As a bare minimum, it should offer him a chance to provide supporting medical evidence.

3.    Both parties must take a rational approach to medical evidence. Some input from Occupational Health is likely to be necessary before a final decision can be made.

4.    Both parties must think flexibly. Can the heightened risk to the vulnerable employee be mitigated – for example, by re-organising his workload, his shift patterns or his physical environment?

5.    Where there is a stand-off, each party faces a hard choice. An employer’s power is to dismiss; an employee’s power-play is to resign and claim for discriminatory constructive dismissal. Each is high-risk. As ever, the best decisions are those that are cool-headed and based on sound legal advice.

Changez Khan

About the author

Changez is barrister specialising in employment law. He has appeared in numerous discrimination trials and appeals, including three before the Court of Appeal.

Article By changez khan
Barrister at Farrar’s Building