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Discrimination by association

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Posted by Tina Chander on 15 May 2020

Tina Chander Partner - Head of Employment Law

Unfortunately, as a result of COVID-19, many employees are finding that they are unable to work due to workplace closures and an inability to work from home.

In some cases, employers are in a position where they can place their employees on a period of furlough leave under the coronavirus Job Retention Scheme to provide the employee with some form of income. However, in some circumstances, the workplace remains open, but employees are refusing to attend work because they are living with a vulnerable person who is “shielding.”

As you are no doubt aware, updated Government guidance recommends that certain vulnerable categories of individual should “shield,” which involves self-isolating for a period of up to 12 weeks, despite not displaying any COVID-19 symptoms, to protect themselves.

The shielding guidance does not expressly require someone living in the same household as someone who is practising shielding to stop working. However, understandably some employees may wish to do this to protect their family members. 

So, what happens to these employees who can physically attend work, but are refusing to do so? 

Should these employees be classed as furloughed workers, should they be placed on a period of sick leave or should they not receive any pay at all?

The guidance states that in these situations, employers are expected to react sensitively to such genuine concerns. However, what does this mean and what risks are employers exposed to in these cases? 

One type of claim that we anticipate will spike arising out of this pandemic is claims of “discrimination by association.”

This type of employment law claim is brought against an employer, not because the employee satisfies the legal definition of “disability” themselves, but because they have a connection to an individual who is disabled.

An example

One example outside of the COVID-19 context of how discrimination by association can occur is where a lone parent has a series of absences from work to take a disabled child to hospital appointments and is subsequently dismissed by their employer due to their absence levels. 

Despite not being disabled themselves, the employee’s absence is directly linked to another individual’s disability, and the dismissal could, therefore, be considered to be directly discriminatory by association.

Applying this to COVID-19 suggests that, in theory, in the current climate if an employee takes the step of shielding because a member of their household is within the highly vulnerable category, and this employee is treated less favourably by their employer than other employees who do not live with a shielding employee, there may be circumstances in which the employee could seek to bring a claim against their employer alleging they have been directly discriminated against, harassed or victimised due to their association with a high-risk individual.

Of course, the usual discrimination principles will apply to such a claim.

Against this background, when considering how to treat an employee living with a vulnerable individual who refuses to attend work to protect that individual, an employer should tread very carefully.

As always, where an employee can work from home and is well enough to do so, they should be encouraged to do so.

However, if an employee is unable to work from home because their role cannot be completed outside of the workplace, it is important to consider options for dealing with the employee’s absence before automatically designating the employee as being on a period of unpaid leave and/or subjecting the employee to disciplinary proceedings.

If your business needs any assistance concerning employees who are shielding and the next steps to be taken, or if you have any other queries which you require assistance with, please do contact a member of our employment law team.

About the author

Tina Chander

Partner - Head of Employment Law

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Tina Chander

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

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