COVID-19


What If They Refuse to Work?


With further COVID-19 outbreaks in care homes highly possible and under the weight of enormous pressure, some staff may refuse to attend work, says Toyah Marshall, Principal Employment Law Adviser at Ellis Whittam.


Whilst we appear to be past the peak, the threat of COVID-19 is still very much present, especially within a care home environment, where large outbreaks have tested staff to their limits. Thankfully, many have so far managed to thwart off the virus, owing in no small part to the tremendous efforts of care staff.


The resilience of those within the sector is evident; however, with further outbreaks still highly possible and a huge amount of additional pressure mounting, some employees may refuse to work in certain areas of the home, undertake certain duties or, in some cases, refuse to attend at all.


CAN EMPLOYEES REFUSE TO WORK?


In line with government guidance, employees who were notified to shield at the start of the outbreak should remain off work or continue to work from home if their role allows. Accordingly, any shielding employee – now referred to as “clinically extremely vulnerable” – should not be asked to attend work as not only could this put them at risk, but as they are likely to have a protected characteristic, it may also give rise to claims of discrimination.


Those previously deemed to be at risk due to their age, an underlying health condition or pregnancy – referred to now as “clinically vulnerable” – are now encouraged to return to work if they have been absent but should be “offered the option of the safest available on-site roles” whilst maintain social distancing. Where this isn’t possible, a risk assessment should be undertaken prior to their return to determine whether their work involves “an acceptable level of risk”.


Clinically vulnerable employees may feel at risk by being at work at all or by undertaking certain duties, especially if a resident is suspected of having, or has, COVID-19. In this scenario,


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"Any shielding employee – now referred to as “clinically extremely


vulnerable” – should not be asked to attend work"


consider allowing the employee to work elsewhere in the home, restricting their contact with symptomatic service users, or arranging period of leave such as furlough where permitted. Disciplining these employees, who may have justification for their refusal or concerns, may amount to discrimination, so some discretion should be shown.


BAME employees, who appear to be disproportionately affected by COVID-19, may also have concerns about coming to work, so consider additional steps that can be taken to protect them.


Additionally, even in usual circumstances, employers have a duty of care to ensure that the health and safety of pregnant employees is not put at risk at work. In regard to COVID-19, any level of risk may not be ‘acceptable’, and these individuals may be entitled to full paid leave until it is safe to return or until maternity leave commences. Placing pressure on pregnant employees to return to work where they do not feel safe to do so could amount to discrimination.


For employees who do not fall into the above categories, the advice remains that they should continue to attend work. As such, their absence or refusal to work could be a disciplinary matter. If the absence is unauthorised, the employee would likely not be entitled to pay as they are not willing to attend work. However, the basis of the refusal will need to be considered before commencing disciplinary proceedings.


WHAT DOES THE LAW SAY ABOUT


DISCIPLINING STAFF IN THIS SCENARIO? Under s.44(1)(d) of the Employment Rights Act 1996, employees have the right not to be subjected to any detriment if, “in circumstances of danger which the employee reasonably believed to be serious and imminent”, they


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