This article by David Lyons, Associate in the employment team at Lewis Silkin LLP, discusses how Covid-19 will continue to impact older people and the workplace over the longer term, and highlights the ways in which potentially discriminatory practices could occur.

Vulnerable people are more likely to be older workers

When developing a safe return to work plan, employers should properly consider the groups in their workforces.

What is a vulnerable person?

Older workers are more likely to be “clinically vulnerable” people – meaning those with a generally heightened likelihood of getting a severe illness should they catch Covid-19. The non-exhaustive list of factors for identifying vulnerability covers those who have a long-term health condition, have a weakened immune system, or are aged 70 or over.

Source: ONS

Although over a quarter of the economically inactive people in the UK cite sickness as the reason for their inactivity (most of whom have a long-term illness), the participation of disabled people (as defined by the Equality Act 2010) in employment has steadily increased in recent years. Employers with more older workers are therefore more likely to have disproportionately more vulnerable people in their workforces.

As with other protected characteristics, the issue of the links between vulnerability and age is a difficult one. In its guidance on working safely during Covid-19, the Government cites as a step to avoid discrimination the need to “involve and communicate appropriately” with workers whose protected characteristics might “expose them to a different degree of risk”. Whilst the specifics of who this could include is omitted, it may well include older workers and possibly older men in particular - the latest figures show that the number of deaths involving Covid-19 was highest in males across the age group 65 to 84 years.

Shielding and extremely vulnerable people

There are also risks in respect of those older workers who are at an even higher risk of severe illness because of a specific underlying health condition (known as “clinically extremely vulnerable” people).

Extremely vulnerable people have been advised to “shield” by remaining at home, but from 1 August the Government is planning to pause shielding in England, unless the transmission of Covid-19 in the community starts to rise significantly. They are advising that from this date extremely vulnerable people can return to work (if they cannot do so from home) as long as their workplace is “Covid-secure”, meaning the employer has followed the government’s sector-specific guidance on what they need to do to keep people safe. Shielding is expected to continue until at least 16 August in Wales.

 “Serious and imminent danger”

Employees may not feel comfortable about returning to work because they feel it is seriously unsafe to do so.  Employees have statutory protection from detrimental treatment or dismissal if they leave or refuse to return to the workplace because they reasonably believe they are in “serious and imminent” danger. This could apply to a serious risk of infection with Covid-19.

The relevant legislation was not designed with Covid-19 in mind, so until this argument is tested in litigation it is difficult to predict how Employment Tribunals (ETs) will apply it to the current risks. It may be the case that employees are required to demonstrate that they have a vulnerability – such as being an older worker with a long-term health condition – and the employer has not done enough to protect them from the risk of infection. Equally, an ET could regard the employee’s concerns as reasonable even if they don’t have a particular vulnerability and the employer is complying with all guidance (and no cases of Covid-19 have been found in the workplace).

It does appear that some employees at least may be within their rights to stay at home on full pay in some circumstances, particularly if the employer has not done enough to comply with the guidance on making a Covid-secure workplace.

Vulnerable older workers and direct age discrimination

Direct age discrimination occurs when an employer treats a job applicant or employee less favourably than others because of age without objective justification.

An employer could potentially be discriminating against a willing older employee by preventing them from returning to work. Whilst the relevant protected characteristic needs to be a cause of the less favourable treatment, it is established law that a discriminatory reason (i.e. “because of age” here) does not need to be the only or even the main reason for the employer’s actions - it only needs to have had a significant influence on the outcome. The link between age and vulnerability would be an important consideration in this scenario.  The statistics do appear to show that older people are at a much higher risk of serious consequences from infection with Covid-19.

To justify direct discrimination, an employer’s aim must accord with a social or employment policy aim. If it could be proven using statistical evidence that an employee’s duties exposed them to increased health and safety risks due to their age, it may be possible to justify a ban on older workers returning to work by using the aim of protecting vulnerable older people. However, it could be more difficult to show that a blanket ban is a proportionate means of achieving this objective.  For example, medical checks for individual employees in high-risk roles could offer a less discriminatory means of achieving the same aim.

This is a tricky issue because it might also be direct age discrimination to reserve more risky jobs for younger workers only.  Again, age discrimination against younger workers can be justified.  The protection of vulnerable older people might be a legitimate aim, but an employer would need to show that it was proportionate to require younger workers only to carry out more risky work.  This could be difficult if it is based on assumptions rather than medical checks.

Vulnerable workers and indirect age discrimination

Indirect age discrimination occurs when an employer applies a provision, criterion or practice (“PCP”) that disadvantages job applicants or employees of a particular age group without objective justification.

Possible PCPs relating to Covid-19 and the workplace could be the disciplining of vulnerable workers for either refusing to return to work or absences related to their vulnerable person status. Disciplining vulnerable workers in this way is likely to particularly disadvantage older workers.

Returning to work

Whilst employers may have a sense of social responsibility to bring back workers as early as possible, social aims unrelated to the needs of the business are irrelevant when justifying an indirectly discriminatory practice.

Likewise, a wish to save money cannot, on its own, amount to a legitimate aim capable of justification. It therefore may be hard to justify requiring an unwilling vulnerable employee to come back to work if steps to mitigate the effects of their absence could be taken (e.g. if other employees could cover their role, or the business could recruit temporary cover). This would be even more difficult to justify in cases where an extremely vulnerable worker is being pressured to return once shielding has paused.

A vulnerable worker in this situation is also unlikely to be entitled to pay from the employer (unless they are refusing to work due to serious and imminent danger, as explained above), so it may be difficult for an employer to show why the employee cannot simply remain at home until the situation has improved.  Similarly, an insistence that a vulnerable employee returns to the workplace when they could work from home instead is particularly unlikely to be justified.

Greater absences after the return to work

There may be a greater likelihood of absences amongst older workers the longer Covid-19 persists. Vigilant workers may have to self-isolate one or more times. Different types of absences will occur for a variety of reasons and employers should bear in mind the differing legal rights to pay and observe best practice.

Researchers are racing to develop a vaccine, but most experts believe this won’t be ready until well into 2021. Although antibody tests are starting to become available at the consumer level, their reliability remains uncertain. In any event mutations of the virus could continue to pose a threat, rendering uncertain any acquired immunity and posing a particular risk to vulnerable people.

As with an insistence on a return to work, it is likely to be difficult for an employer to justify disciplining vulnerable older workers for intermittent absences if this is due to a genuine concern about Covid-19.

Furlough

Many vulnerable employees will currently be furloughed. From 1 August, employers must contribute more towards the costs of furlough, with the scheme ending altogether on 31 October. (For more information see FAQs for employers on the coronavirus job retention scheme). Employers will need a strategy for managing furlough returns.

Employers should take a practical approach towards vulnerable workers who are unable to work from home and unwilling to come back to the workplace (depending on the legitimacy of their concerns). This could involve moving them onto unpaid leave until the position can be re-visited.

Care should also be taken to avoid the risk of potential age discrimination through a policy of preventing vulnerable workers from returning to work even if they are willing and able to do so.  As discussed above, this could inadvertently establish a PCP which could disproportionately affect older people.

Vulnerable workers and disability discrimination

Many individuals who are classified as vulnerable to Covid-19 will also be covered by the definition of disability under the Equality Act 2010.  A disability is a health condition which is long-term (with an actual or likely duration of 12 months or more) and which has a significant impact on the employee’s ability to do day-to-day tasks (for example, working from home where this is possible, going into work where necessary, buying groceries, preparing meals for themselves).  An employee may be disabled because of the impact of a pre-existing long-term health condition, and this in turn makes them more vulnerable to Covid-19.

An employer’s duty to make reasonable adjustments for disabled people may require that they transfer an employee into safer alternative work, or even allow unpaid leave.

Private medical insurance and Covid-19

People hospitalised with Covid-19 are currently being treated through the NHS, with some providers offering a cash benefit to customers as no private health options are available. Due to the large catch-up period of postponed care, not all providers are currently accepting private patients again.  This could have a disproportionate effect on older workers. Many vulnerable workers are currently facing financial hardship (through being furloughed or losing their jobs) and may consider cancelling their private medical insurance. However, they may struggle to obtain cover in the future due to their underlying medical issues, particularly if they have experienced health problems in the meantime.

The law has a specific exemption from age discrimination for insurance provided by the employer.  It is not age discrimination for an employer to provide insurance for employees only until they turn either 65 or the state pensionable age (whichever the greater). Similarly, it is not discriminatory to start providing cover to only employees who are yet to reach the same age.

Conclusions

These are some of the key areas of risk for employers concerning vulnerable workers.  This may change as the situation progresses and best practice develops. Practically, employers can reduce the chances of concerns being raised by being scrupulous in their approach to health and safety and communicating clearly with their workers.

Employers should also continue to bear in mind their need to take steps to safeguard employees’ mental health and wellbeing, such as by listening carefully to the concerns of those who feel nervous or anxious about returning to work. Similarly, workers’ mental health may be suffering if they want to return to work but are not allowed to do so.

David Lyons is an Associate in the employment team at Lewis Silkin LLP