Where shielding employees can work from home, they should. Where they can’t, government advice is that they should not attend work.
Employees who are shielding can be furloughed to mitigate the financial impact on them of having to shield (subject to meeting the qualifying rules of the furlough scheme). Under the furlough rules, employers are free to choose not to furlough employees they don’t have work for if they have a right to lay them off with no pay in the contract (although there may be an argument for employees with under 2 years’ service that this would be a breach of trust and confidence depending on the reason for the employer not using the furlough scheme) BUT
- 44 ERA 1996 Employment Rights Act 1996 (legislation.gov.uk) says employees are allowed to walk out of work if they reasonably believe there is a serious and imminent danger which they could not reasonably be expected to avert and not return until the dangers have gone. This right applies even to employees without 2 years’ service.
An employee should not be subjected to a detriment (a disadvantage) because he’s refused to work because he’s been told to shield following the PM’s announcement on 4 January 2021 which specifically stated that those who need to shield should not go to work even where they cannot work from home. A shielding employee who is paid SSP instead of furlough, could argue that this is a detriment because the employee refused to work because the PM has told him it’s not safe to do so and therefore potentially claim for the difference between SSP and the furlough pay they would have received if their employer furloughed them.
An employee should also not be dismissed because they follow the government advice to shield. If they are dismissed for this reason, the dismissal could be automatically unfair irrespective of length of service under s. 100 ERA 1996 – Employment Rights Act 1996 (legislation.gov.uk).
Employees who are asked to shield are likely, in many cases, to be disabled because only employees with serious health conditions are required to shield. Employees may therefore also have a route to claim under the Equality Act 2010 by arguing not furloughing them when they’ve been told to shield is a failure to make a reasonable adjustment and/or unfavourable treatment because of something arising in consequence of their disability and/or indirect disability discrimination. Ordinarily paying an employee full pay when they can’t work would not be a reasonable adjustment, but where a government-funded scheme is available to fund 80% pay, a Tribunal may take a different view unless the employer can objectively justify not using the furlough scheme.
Employers also run the risk of a personal injury claim from a shielding employee (or their estate in the event of death) if the employee accedes to the pressure to attend work and goes on to contract COVID19. Where government advice is that it’s not safe for shielding employees to work, it would be hard for an employer to argue they’ve not breached their duty of care towards the employee when they’ve put financial pressure on the employee to continue attending work.
What should employees do if they are shielding and being put under pressure to attend work? In the first instance, employees should discuss the problem with their employer and ask to be furloughed. If that doesn’t work, point out the above legal points to try and encourage your employer to reconsider or contact PJH Law for help firstname.lastname@example.org.