Return to Work : Refusal and Discrimination

Simeon Spencer
14 May 2020

So, the PM has announced an ‘easing’ of the lockdown. Suffice to say that the measures have hardly been met with universal praise. In the broadest of terms, from 13 May 2020, workers in England are now allowed/encouraged to return to work where it is not possible for them to work from home and their employer is not required to remain closed.

Government guidance has been released for 8 different sectors, as well as 5 practical steps for all employers which include social distancing, improved cleaning measures and home-working where possible.

There is still much discussion surrounding the adequacy of the Government’s guidance and the grounds upon which staff will be legally entitled to refuse to return to work. The Government appears to have devoted scant thought to potential discriminatory impact on workers who fall into the protected categories under the Equality Act 2010 (the “EqA”).

Race, age and disability

Recent findings from the Office of National Statistics show that age, certain underlying health conditions, and racial/ethnic background appear to be key factors regarding the mortality rate of those infected with Covid-19. For example, black people being four times more likely to die from the virus than white people. Employers, therefore, clearly need to carefully consider how they manage staff returning to work, particularly in relation to the above-named groups. There is an inherent pull-push between a worker’s right to refuse to return to what they may perceive as being a dangerous workplace and an employer’s right to require its staff to work. Throw in the complexities of discrimination by adverse impact (indirect discrimination) and steering a lawful course through it all becomes decidedly more difficult for employers.

The ‘right’ to refuse:

Taking the BAME example (though similar issues arise in relation to age and disability): can workers from a BAME background refuse to return without transgressing employment law? To lawfully refuse to return, an employee must reasonably believe that there is a “serious and imminent” danger to their health, which they can only avert by absenting themselves.

Our view is that “serious and imminent” will be a high hurdle to jump (even in the case of an older worker or person from a BAME background), but that much will depend upon the facts of each particular case. For example, the danger may well be serious (perhaps that is axiomatic) but much will depend upon whether an employer adheres to the Government guidance, and to what extent, in determining whether the risk is “imminent”. Employers will, therefore, need to carefully carry out risk assessments in considering the return to work for all staff (including their ability to attend work without using public transport), as well as those who appear to be more vulnerable to Covid-19.

Indirect Discrimination:

Indirect discrimination occurs where an employer equally applies a policy (requirement to attend work) to all workers but some workers are more adversely impacted than others and the reason for the adverse impact is related to their protected category. Furthering our BAME example, in such circumstances, are BAME workers (or indeed, not to forget older workers, too) adversely impacted to a greater degree than their white (younger) counterparts where all workers (regardless of race or age) are required to attend work? We can certainly see scope for indirect discrimination argument where an employer is not open to adjusting its policy and approach to return to work to accommodate greater risk profiles associated with protected categories.

Even if indirectly discriminatory on its face, the circumstances may still allow for a defence by the employer that it had adopted a “proportionate means of achieving a legitimate aim” (so-called “objective justification”). In requiring all staff to return to work, the proportionate means would be following Government guidance and applying the ‘best’ advice available with the legitimate aim being to get the business off its knees and contributing to rebuilding the economy. We can see real scope for this argument finding favour where an employer really has used best efforts to apply all of the guidance and to protect its workers as far as it possibly can, whilst still demanding their return to the workplace. However, as mentioned above, much will turn on the facts of each particular case.

Disability Discrimination and Reasonable Adjustments

The protected category of disability raises some additional, and sadly no less complex, questions. Much is not known about the Covid-19 virus but what seems abundantly clear is that those suffering from certain health conditions (diabetes, lung disease; suppressed immune system; cancer etc.) which are also disabilities under the EqA, are more vulnerable to catching and dying from Covid-19. To this, we may add that those who have sufficiently long term and debilitating mental health conditions are likely to qualify as disabled under the EqA, as well as those whose condition may be triggered and/or exacerbated by the prospect of having to return to what they perceive to be an unsafe working environment (for example those suffering from anxiety and depression).

In the area of disability discrimination, employers are affixed additional pro-active obligations to make adjustments that are reasonable to minimise the adverse effects suffered by disabled workers. Our view is that employers face an increased risk of successful disability discrimination claims, should they fail to consider what reasonable adjustments, if any, they can make to their return to work approach/policy in respect of disabled workers (for example by trying to find alternatives to simply requiring a disabled worker to attend the workplace in the same way as non-disabled workers). This is the case, even if they follow Government guidance. This issue has resulted in some of the most complex cases in the pre-Covid-19 era, so it is a fair prediction that it may result in no less complex and hard-fought cases in the new Covid-19 world.

Childcare and sex discrimination

Covid-19 is perhaps unique in that it seems to impact everything and every walk of our lives. Yes, even sex discrimination is a factor here. It is well established in employment law that women are statistically more likely to bear the heaviest child-care burden in society. Mix in the fact that schools and nurseries may not be back to normal for many months to come and it’s not hard to envision the disproportionately negative impact on women when it comes to complying with a blanket return to work policy, no matter what safety measure is in place. It would, in our view, be a bold employer who insists that women with childcare responsibilities and no school or nursery must return to work on the same basis as their male counterparts.

What employers need to consider

We hope that by highlighting some (but by no means all) of the potential discrimination issues raised by the call to return to work will alert employers to the fact that there are pitfalls and that careful thought, planning and implementation are required regardless of the Government guidance. In short, the message is, complying with the Government’s guidance is not enough in the sphere of discrimination law, and whilst the right to refuse to return to work may be of limited value to employees in general, those who fall into protected categories have a broader and more valuable range of protections at their disposal.

Simeon Spencer
Senior Partner – Co-Founder
Simeon Spencer is a Partner Solicitor at Spencer West. He specialises in commercial, corporate, employment (domestic and international), disputes and litigation.