Returning to work with a vulnerable household – should employees consider associative discrimination?

The government’s recent announcement to extend the furlough scheme through to March 2021 may offer a temporary reprieve for some, but whilst the risk of coronavirus remains, the issue of being asked to return to work will continue to weigh heavily on the minds of many, especially those who care for or live with someone who is vulnerable.

Government guidance on shielding and protecting those categorised as clinically extremely vulnerable has evolved throughout the pandemic. To be defined as clinically extremely vulnerable you either need to have one or more of the conditions listed in the guidance, or based on your doctor’s clinical judgement you can be added to the Shielded List of Patients if they deem you are at higher risk of serious illness if you catch the virus.

The introduction of the three tier system meant that advice for those who are clinically extremely vulnerable varied between areas (requiring you to check the COVID alert level where you live and work). The introduction of a second National lockdown for England should mean a simplification of these rules, until England reverts to the three tier system.

With regards to work the current advice for everyone (during lockdown 2.0) is to work at home where possible.

Whilst many employers have transitioned to remote working successfully during the pandemic, for some jobs this is simply not possible and where this is not possible those people will need to continue to go to work.

What rights and options do I have if I care for or live with someone who is clinically extremely vulnerable?

Employers have a legal duty to protect the health, safety and welfare of their employees. In May 2020 the government issued guidance around working safely during coronavirus. In total 14 separate guides have been produced to cover a range of different types of work with some general rules applying to all, such as the requirement to carry out a COVID-19 risk assessment. In addition to assessing risks in the workplace employers should give you information about the risks they have identified and how you are protected.

If you refuse to work when you have been requested to do so, you risk breaching your contract of employment and ultimately dismissal. Though there are protections in place where believe that you are in serious and imminent risk of danger.

Can I be furloughed if I care for or live with a clinically extremely vulnerable person?

However, if the reason for your refusal is that you care for or live with somebody who is clinically extremely vulnerable there are a number of options. Recent government guidance confirms that employees can be furloughed if they are unable to work because they are shielding (or need to stay at home with someone who is shielding), or because they have caring responsibilities resulting from coronavirus.

If this applies to you then the first step is to speak to your employer and explain your concerns and ask to be furloughed. Your employer does not have an obligation to furlough you though, so this would be by agreement. Other options are to ask for additional protective measures to be taken at work; to take annual leave; to take parental leave; to take a period of unpaid leave/sabbatical, all of which need to be agreed with your employer.

Please note that special protections apply if you are pregnant.

Other forms of protection to consider

• Associative Discrimination

You may also be protected by the concept of associative discrimination.

Associative discrimination is discrimination based on the protected characteristic of someone you are associated with (for example, if you have a disabled child). The relevant protected characteristic in this scenario is that of disability, which is defined by the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities.

If someone you care for or live with has been categorised as clinically extremely vulnerable it is likely (but not guaranteed) that they will satisfy the definition of disability under the Equality Act 2010. It is yet to be seen how COVID-19 will impact the Employment Tribunal’s assessment of disability, for example, a condition that would not previously have satisfied the definition of ‘disability’, arguably may now if the individual is at a higher risk of serious illness from coronavirus meaning their condition now has a substantial adverse effect on their ability to carry out normal day to day activities.

• Direct discrimination

It could be argued that if an individual who is caring for or lives with someone who is clinically extremely vulnerable is treated less favourably because of the disability of that person, this could potentially give rise to a claim for direct associative disability discrimination. For example if an employee requests to work from home because they are caring for someone who is ‘clinically extremely vulnerable’ and the request is unreasonably refused.

• Harassment related to disability

Harassment is defined as unwanted conduct related to a relevant protected characteristic (such as disability) which has the purpose or effect of either violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. The definition of harassment in the Equality Act makes it clear that the unwanted conduct relates to a relevant protected characteristic, it is not a requirement that the victim actually has the protected characteristic. So for example, if a person is harassed because of their child’s disability this could give rise to a claim for associative harassment related to disability.

• Other types of discrimination

The law in this area is still developing, and it is unclear whether for example it would be possible to bring a claim for associative indirect discrimination. This would be where an employer, applies a provision, criterion or practice to everyone (such as refusing home-working), but which puts or would put those who share an individual’s protected characteristic (such as disability) at a particular disadvantage (increased risk for disabled households).

The coming months will no doubt present challenges for employers and employees alike, especially those employees who are shielding and those who live with and care for them.

If you have concerns about working because you live with or care for someone who is clinically extremely vulnerable you should raise these with your employer in order to try and find a solution. These associative discrimination arguments have yet to be tested in the Employment Tribunal, but employees should consider putting them to their employers if they are encountering resistance to protective measures and a lack of consideration for their particular circumstances.