Shielding

About ELA

The Employment Lawyers Association’s ("ELA") Legislative and Policy Committee has set up a standing working party to respond to and make recommendations on measures relevant to employment law during the current coronavirus pandemic.

ELA is a non-political association of approximately 6,000 specialists in the field of UK employment law and includes those who represent claimants and respondents in courts and employment tribunals. It is not ELA's role to comment on the political or policy merits or otherwise of proposed legislation or regulation, rather it is to make observations from a legal standpoint. ELA's Legislative and Policy Committee consists of experienced solicitors and barristers who meet regularly for a number of purposes including to consider and respond to proposed legislation and regulations.

This paper is intended to help inform public debate and provide helpful commentary to practitioners and to decision-makers considering potential legislation and policy only. This paper does not provide comprehensive analysis of the matters referred to in it and is not intended to provide guidance or legal advice to employers, employees or any other person. Employment law and best practice can develop rapidly and appropriate advice will depend on the factual context. Up-to-date independent legal advice should be sought from independent, appropriately qualified, specialists. Neither ELA nor contributors to this paper (or their respective firms) accept any legal responsibility whatsoever to any person who chooses to rely upon the content despite this clear warning.

A sub-group of the working party has prepared the paper below to highlight employment law issues relating to the position of those who have been ‘shielding’. The sub-group members are as follows and the full ELA Working Party is listed at the end of this paper.

Bruce Robin, UNISON
Gus Baker, Outer Temple Chambers
Katie Russell, Burges Salmon

Executive Summary

The position of those who are clinically extremely vulnerable is unique from both an employment law and health and safety law perspective. Here we have a category of workers who have not been classified in this way before and there are a number of claims that might arise in relation to the treatment of these workers and those who live and/or care for them. These claims include for example: disability discrimination, health and safety detriment and dismissal claims, whistleblowing detriment or dismissal claims, and claims arising from a breach of trust and confidence.
The following are examples areas of particular risk for employers:

requiring someone who is clinically extremely vulnerable to return to work in circumstances where it is not safe for them to do so and/or where they reasonably believe it is not safe to return (e.g. because the workplace itself is not safe or potentially because the employee cannot commute to work safely).
decisions relating to furlough, including selecting someone who is clinically extremely vulnerable for furlough when others in the same role have been able to work from home or, in relation to those who have not (or cannot) be placed on furlough and who cannot work from home paying SSP only rather than a higher sum.
a refusal to make reasonable concessions in relation to workers who live with or care for a clinically extremely vulnerable person.

In addition, there are a number of areas in which further clarification of the legal position would assist practitioners and in respect of which feedback from practitioners is welcomed, including:

whether those living with someone who has been shielding can argue they have suffered direct (and/or indirect) associative disability discrimination?
whether a decision to furlough or not to furlough an employee who was formerly shielding could be discriminatory and whether paying an employee in full (rather than at the furlough rate) would result in a material difference to the legal position in such circumstances?
whether an employee who is ‘clinically extremely vulnerable’ is better placed to bring a claim of detriment (or dismissal) under s44 (and s100) of the Employment Rights Act 1996, if they refuse to return to their workplace due to a reasonable belief that they are in serious and imminent danger?
whether it is likely that, in the current circumstances, greater expectation and liability will be placed onto employers with respect to any risks posed to an employee as part of their commute to their ordinary workplace?

1. Introduction

1.1. Several new legal concepts were introduced with the UK Governments’ responses to the coronavirus pandemic and the rights of those who have been ‘shielding’ raise some potentially complicated points.

1.2. Recent developments in relation to unlawful discrimination may be relevant, particularly the concept of ‘associative’ discrimination, due to the need for employers to consider the varying circumstances of individual workers. Associative discrimination relates to the protected status of someone with whom an individual is associated, e.g. an employee who suffers discrimination because their child has a disability.

1.3. In this paper we have set out, in overview, the approach to date which has been taken by the government in relation to those who have been shielding (also referred to in England as the ‘clinically extremely vulnerable’). In Scotland, those who have been shielding are those who have been identified as being at the highest risk of severe illness from coronavirus. We have not reviewed the position in Wales or Northern Ireland for the purposes of the paper.

1.4. We have then sought to identify particular areas of risk where claims might arise in relation to treatment of workers or employees who have been shielding and in relation to those who live with and/or care for those who have been shielding. We then go on to consider some of the more difficult or unusual areas of law which these circumstances potentially give rise to. Please note that public guidance in this area (e.g. Public Health England) is being updated frequently and that different guidance applies to the different jurisdictions of the United Kingdom.

2. Background to ‘shielding’

2.1. In March 2020 it was recognised that Covid-19 presented a higher risk to certain individuals than others and categories of vulnerable (later known as “clinically vulnerable”) people were identified. These included the over 70s, those with certain underlying health conditions and those who were pregnant. A further group of people were identified as clinically extremely vulnerable on account of certain existing health conditions. These individuals were officially notified of this by relevant health authorities and were advised to ‘shield'.

2.2. Many employers were particularly concerned as to how they should treat those who were clinically vulnerable or clinically extremely vulnerable, not least because their decisions would be subject to scrutiny under both employment law and health and safety law.

2.3. Questions initially focussed on whether and what to pay those who were unable to work (either at their employer’s premises or from home), as it wasn’t clear whether they would be eligible for SSP under the existing eligibility requirements of the Social Security Contributions and Benefits Act 1992 and deeming regulations for SSP.

2.4. In March 2020, the Government introduced new legislation to amend the existing SSP Regulations. This legislation expanded the definition of those who were deemed incapable of working to include those who had to self-isolate from others to prevent infection or contamination with coronavirus. A flurry of further amending regulations followed and on 16 April 2020 SSP entitlement for those shielding came into force through the Statutory Sick Pay (General) (Coronavirus Amendment) (No.3) Regulations 2020 SI 2020/427. These regulations have been amended and updated at various points since 16 April 2020. The current regulations confirm that a person is deemed incapable of work when they are unable to work by reason of the fact that they are shielding. An employee is shielding where they are defined in public health guidance as ‘clinically extremely vulnerable’ or at “highest risk of severe illness from coronavirus” and they have been advised by a shielding notification sent to them in accordance with the public health guidance to follow shielding measures for a period specified in that notification.

2.5. The public health guidance is determined differently for England (Public Health England), Scotland (Scottish Ministers) and Wales (Public Health Wales National Health Service Trust) and has been subject to amendments throughout the crisis.

2.6. On 22 June 2020, the UK Government announced that from 1 August 2020, shielding will be ‘paused’ and those who have been shielding would be able to return to their workplace if they could not work from home.

2.7. In July 2020, the UK Government published updated guidance on shielding. This guidance provided more details about the plans to ‘pause’ shielding from 1 August 2020 in England and Scotland (which are now in place), and from 16 August 2020 in Wales, unless the transmission of Covid-19 in the relevant community started to rise significantly.

2.8. At the time of writing, the shielding guidance which applies to England was most recently updated on 14 July 2020. It recommended that from 1 August 2020, the employer should help those who have been shielding to ‘transition back to work safely’ if the individual cannot work from home. As of 1 August 2020, the extended definition of SSP no longer applies for shielding workers in England for the time being (which means that the employee is no longer eligible for SSP due to shielding even if they continue to stay away from work). Those who have been shielding can remain on furlough beyond 1 August or can be re-furloughed, if appropriate under the other rules of the Coronavirus Job Retention Scheme (“CJRS”), provided they have previously been furloughed for a full 3-week period prior to 30 June 2020.

2.9. Scotland’s shielding guidance, which at the time of writing was most recently updated on 27 July 2020, adopts a similar position to England with regard to SSP. In Scotland, those who are shielding are no longer entitled to SSP from 1 August 2020 for the time being.

2.10. Many employers are likely to treat those who have previously been shielding in the same way as they currently treat the clinically vulnerable – wherever possible this means continuing to allow them to work from home beyond 1 August in England and Scotland, and beyond 16 August in Wales. However, for those who cannot work from home or for whom furloughing is not possible or appropriate, the employer needs to consider if they can safely bring the employee back to work and, if they cannot, how they will proceed from there.

2.11. It is worth noting that enhanced protection for those who have been shielding may be introduced if current lobbying is successful. As shielding measures are relaxed, the Government is coming under pressure from charities and groups such as Diabetes UK, with support from the Trades Union Congress (“TUC”), to protect vulnerable workers. Diabetes UK is calling for those in the ‘clinically vulnerable’ group to have the right to continue to work from home after 1 August 2020 in England and Scotland, and after 16 August in Wales. The charity has called on the Business Secretary to develop a tool to assess the risk to individuals of developing severe symptoms depending on characteristics such as age, sex, ethnicity and underlying health conditions. The TUC has called for the furlough scheme to be extended for shielding and high-risk workers.

3. Potential risks

3.1. The position of those who are clinically extremely vulnerable is unique from both an employment law and health and safety law perspective. Here we have a category of workers who have not been classified in this way before and employers will need to exercise particular caution in their treatment of these individuals if they are to avoid the potential for claims.

3.2. We have identified below areas which we believe present potential risks for employers. Some of these areas will be familiar territory for employment lawyers – others less so. For the more unusual areas identified we have provided an outline of the relevant legal issues to be considered.

4. Potential risk area: a requirement to return to the workplace

4.1. Given the list of health conditions identified in the relevant public health guidance, it is likely that the majority of those who are or have been shielding will be disabled for the purposes of the Equality Act 2010 (‘EqA’). This should be contrasted with those who are categorised as clinically vulnerable. Some who are clinically vulnerable will be disabled for the purposes of the EqA but many will not.

4.2. There are likely to be challenges on who is disabled. For example, employment tribunals are likely to consider the impact of Covid-19 when deciding whether someone who is clinically vulnerable qualifies as being disabled under the EqA 2010. Individuals who prior to the pandemic would not have been disabled, may contend that a physical impairment they have that makes them vulnerable to Covid-19, now should be viewed as a substantially adverse effect on their ability to carry out normal day-to-day activities, because of the need to take steps to avoid infection.

4.3. All employers should have taken, or should be in the process of taking, steps to reduce the risks posed by Covid-19 by adhering to the relevant government guidelines applicable to their working environment. This guidance also requires them to produce and, for those with more than 50 employees, to publish a Covid-19 risk assessment. That risk assessment should already address the risks for those who are clinically vulnerable – with the upcoming pause in shielding, that risk assessment will need to be updated to address the risks for those who are clinically extremely vulnerable who are returning to work.

4.4. If someone who is clinically extremely vulnerable is being required to return to work in circumstances where it is not safe for them to do so and/or where they reasonably believe it is not safe to return (e.g. because the workplace itself is not safe or potentially because the employee cannot commute to work safely) then potential claims may arise if they refuse to return and are subjected to a detriment (for example if pay is withheld) or if they are dismissed. These might include for example health & safety related detriment/dismissal claims under s44 and s100 of the Employment Rights Act 1996 (“ERA”), whistleblowing detriment or dismissal claims under s47B and s103A of the ERA, claims arising from a breach of trust and confidence and disability discrimination claims under the EqA.

4.5. We consider the legal protections arising in relation to health and safety and whistleblowing in more detail below.

5. Potential risk area: a requirement to remain on furlough or to be re-furloughed and / or a refusal to furlough

Other areas where claims might potentially arise for those who have been shielding could include:

selection for furlough where others in the same role have been able to work from home; and
an employer who has decided not to furlough a shielding worker who cannot work from home and pays SSP only rather than a higher sum.

For example, we might expect scrutiny of whether an employer ought to pay 100% normal wages or extend a company sick pay scheme to include them. Equally an employer who is not willing or able to make the necessary safety arrangements to facilitate a shielding worker’s return to work but wants instead to keep them at home – eg on SSP or furlough – may also be at risk of discrimination, trust and confidence and/or constructive unfair dismissal etc claims.

6. Potential risk area: treatment of workers who live with or care for a clinically extremely vulnerable person

A further category for consideration concerns workers who live with or care for a clinically extremely vulnerable person. Whilst those individuals are not entitled to shield, nor were they entitled to SSP because they lived with someone who was shielding, employers will need to consider their position carefully. If an employer refuses to make reasonable concessions to the employee, for example, an adjustment to hours to allow them to avoid peak times on public transport or allowing them to work from home, the employer risks claims about health & safety (see below) or breaching the duty of mutual trust and confidence which could lead to a claim for constructive unfair dismissal. In addition, if the person shielding is disabled, the employee may also have a potential claim under the provisions prohibiting discrimination by association.

7. Legal issues arising

7.1. Disability discrimination

From a discrimination law perspective, these types of claims might typically involve arguments about whether there has been discrimination arising from disability under s.15 EqA 2010 and/or a breach of the duty to make reasonable adjustments under ss.20-21 EqA 2010. A further relevant consideration is how the law on associative discrimination might be engaged. As explained above, fresh consideration may need to be given on how the definition of being disabled for the purposes of the EqA will be affected by coronavirus related matters.

7.2. Discrimination arising from disability

7.2.1. One area of potential claims might be where an employer insists that a disabled worker returns to work from 1 August 2020 after previously shielding. Although it will depend on the circumstances, in some cases the individual may be able to argue that they were treated unfavourably because of something arising in consequence of the disability. Given that those shielding will almost certainly have informed their employer that they have been instructed to shield, they are likely to have (or may be deemed to have) the requisite knowledge of the disability, so in many cases the merits are likely to turn on objective justification for any unfavourable treatment suffered.

7.2.2. There are two key UKSC cases to consider on justification. Firstly, in Homer v. Chief Constable of West Yorkshire [2015] UKSC 15, which confirms that it involves an assessment of whether the unfavourable treatment is both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so. Furthermore, it will be relevant to consider whether or not a lesser measure could have achieved the employer’s legitimate aim: Naeem v. Secretary of State for Justice [2017] UKSC 27. On this latter point, note that the EAT has held in this case that a written warning was not a proportionate means of achieving a legitimate aim of ensuring adequate attendance levels in Direct Line Insurance Services Limited v. O’Connor UKEAT/0230/17.

7.2.3. It will be important to consider the wider context of the alleged unfavourable treatment complained about, such as how other employees have been treated and the impact of steps taken as reasonable adjustments for the particular disabled worker. In particular, the statutory Code of Practice issued by the EHRC (EHRC Code) states ‘if an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for [the employer] to show that the treatment was objectively justified.’ [Para 5.21].

7.3. Duty to make reasonable adjustments

7.3.1. The duty is triggered in only three specified circumstances. While concerns about a physical feature of the employer’s premises and provision of an auxiliary aid will raise potential challenges, the majority of concerns seem likely to arise from where a relevant practice, criterion or provision (PCP) puts a disabled person at a substantial disadvantage in comparison to those who are not disabled. For example, a PCP which requires a return to a workplace located in Central London could put disabled persons who are extremely clinically vulnerable at a substantial disadvantage because of potential exposure to risk of contracting Covid-19.

7.3.2. The potential factual impact can be very difficult for employers to assess in practice given the uncertainty around the clinical aspects of Covid-19 and related risks and also because the same PCP can affect employees in different circumstances differently. For example, individuals who normally work at the same place may have different travel to work options.

7.3.3. Reasonableness of adjustments will always depend on an objective assessment of the unique circumstances to the situation: namely, the particular substantial disadvantage caused to the disabled worker by the PCP and the factors which influenced the employer’s decision. The EHRC Code offers examples of factors that might be taken into account [Para 6.28] but the most important one is whether the adjustment will work. A ‘prospect’ of success is usually sufficient for the proposed step to be capable of being a reasonable adjustment. For example, the Court of Appeal in Griffiths v. The Secretary of State for Work and Pensions [2015] EWCA Civ 1265 held that it may be reasonable to take a step where success is not guaranteed in order to alleviate the disadvantage claimed.

7.4. Associative and perceptive discrimination

7.4.1. In relation to claims which might be brought by those who live with or care for clinically extremely vulnerable people, in theory, due to the way that s.13 EqA 2010 is drafted, direct discrimination claims can be based on association or perception of the protected characteristics under the EqA 2010. This is because the treatment complained of is ‘because of a protected characteristic’ rather than by reference to the protected characteristic of a complainant. Therefore, a claim could arise because the complainant associates with someone who has the protected characteristic or because the complainant is perceived to have the protected characteristic.

7.4.2. Direct associative disability discrimination was first recognised in the UK before the EqA 2010 was introduced. This was due to the seminal case of Coleman v. EBR Attridge Law LLP [UKEAT/0071/09/3010] which followed the European Court of Justice’s decision that examined whether associative discrimination fell within the ‘Concept of Discrimination’ for the relevant EU Directive (Framework Directive 2000/78/EC). Essentially, the EAT decided that words could be read into the Disability Discrimination Act 1995 to prohibit ‘associative’ discrimination where the complainant alleged that she had been treated less favourably because of her disabled son.

7.4.3. This concept seems relevant to those who are living with persons who are shielding.

7.4.4. Direct perceptive disability discrimination is potentially less relevant for the purposes of those who are shielding. The two leading cases so far (J v. DLA Piper [UKEAT/0263/09] and Chief Constable of Norfolk Constabulary v. Coffey [2019] EWCA Civ 1061) were focussed on situations where an employer allegedly fails to consider the impairment to be sufficiently serious or long term to satisfy the EqA 2010 threshold.

7.4.5. One interesting area for consideration is the potential extension of indirect discrimination rights under s.19 EqA 2010 due to the ECJ’s decision in Chez Razpredelenie Bulgaria AD [2015] C-83/14 and its interpretation of EU citizens’ rights under the Charter of Fundamental Rights.

7.4.6. The orthodox position in UK law has been that in a successful claim for indirect discrimination the PCP must put, or would put, a group who share a protected characteristic (including the complainant) to a particular disadvantage that cannot be objectively justified. This is reinforced by the wording of s.19 EqA that requires the complainant to have the protected characteristic. However, this requirement to have the protected characteristic is not set out in the EU Directives that the EqA implemented into UK law.

7.4.7. In Chez, the ECJ held that the Race Directive (2000/43/EC) was to be interpreted as prohibiting indirect discrimination where a PCP ‘put persons of a racial or ethnic origin’ at a particular disadvantage when compared with other persons. This means that, under the Directive, it would be sufficient to show that a PCP gives rise to a group disadvantage based on a protected characteristic in order for the respondent to show that such treatment was objectively justified. The ECJ found the language of the Directive was not clear on whether a complainant must have the relevant protected characteristic and that the underlying rights must be interpreted with the over-arching aim to eliminate ‘all discrimination’. It is possible that we could see arguments that s.19 EqA should be read in accordance with the principles set out in Chez and the ECJ’s interpretation of the Race Directive. A key question is whether the analysis in Chez would equally apply to the Equal Treatment Framework Directive (2000/78/EC) which covers disability and other protected characteristics. For example, EU law has often provided some support for such an approach in cases such as in Marleasing SA v. La Comercial Internacional de Alimentacion SA [C-106/89] and Kucukdevici v. Swedexx GmbH & Co KG [C-555/07] made clear that the principle of non-discrimination is a general principle of EU law.

7.4.8. This gives rise to an interesting proposition. Take for example a requirement to return to the workplace – depending on the circumstances, this could be a PCP which puts a clinically extremely vulnerable employee at a disadvantage. If that were the case, the PCP would need to be objectively justified. However, if Chez could be said to apply in the UK is there an argument that those who live with or care for a clinically extremely vulnerable person might also, in the same circumstances, be able to claim indirect associative discrimination which an employer would need to objectively justify?

7.5. Health and safety considerations

7.5.1. The health and safety protections in the ERA 1996, which received little attention from appellate courts before the pandemic, raise some interesting issues that may be unfamiliar to practitioners.

7.5.2. As mentioned above, statutory protections against detriment under section 44 ERA 1996 may be engaged in some cases. Section 44 ERA 1996 protects employees against detriment in prescribed circumstances where they take steps to protect themselves or others, or leave their workplace altogether, due to a reasonable belief that there is a serious and imminent danger. Section 100 ERA 1996 provides that a dismissal for any of the same reasons will be automatically unfair. Although sections 44 and 100 ERA 1996 have not been frequently invoked, employers must be mindful that they are more likely to arise in the workplace post-lockdown.

7.5.3. Subsections 1(a) to (c) of sections 44 and 100 ERA 1996 protect employees designated to look after health and safety, or those who step into their shoes if no health and safety committees exist. There is likely to be a significant overlap with whistleblowing, considered below.

7.5.4. Subsections (1)(d) and (1)(e) of sections 44 and 100 ERA 1996 seem most likely to be raised in relation to coronavirus.

7.5.5. The ‘gateway’ that claimants must pass before their actions can be protected under both subsections is that there are “circumstances of danger which the employee reasonably believed to be serious and imminent”. Coronavirus is undoubtedly a “danger” and it is difficult to imagine an employment tribunal concluding that it was unreasonable for a claimant to think that coronavirus was “serious”. So, whether the gateway test is passed will depend on how “imminent” the danger is found to have been reasonably believed to be. The risk of disease has previously been found to amount to “imminent” danger Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683, but danger that is contingent or only possible may be insufficiently imminent ABC News Intercontinental Inc v Gizbert UKEAT/0160/06.

7.5.6. If a Claimant passes through the ‘gateway’, for the purposes of ss44(1)(d) and 100(1)(d) ERA 1996 they must also show that the danger was such that they reasonably believed the danger was such that they “could not reasonably have been expected to avert”. Whether or not someone can reasonably be expected to avert danger depends on i) how acute the danger is and ii) what measures they have at their disposal to avoid the danger. If they can show this, then if they then refuse to attend the workplace, or leave it or any part of it, they will be protected from dismissal or detriment whilst the danger persists.

7.5.7. Sections 44(1)(e) and 100(1)(e) ERA 1996 are wider. Here, if the ‘gateway’ described above is passed, an employee is protected if they take “appropriate steps to protect himself or other persons from the danger”. Those steps may amount to insubordination or refusals to comply with management instructions, as per Masiak v City Restaurants (UK) Ltd [1999] IRLR 780. Applied to the present circumstances, they could be a refusal to attend work or an insistence on working from home. The extent to which the steps involve the individual employee, rather than ‘other persons’, remains a point which could become relevant. For example, where the employee must travel by public transport, or where the person lives with someone who is shielding.

7.5.8. Whether or not a step is appropriate or not depends on all the circumstances, but crucially the employee’s knowledge, facilities and the advice available to him at the time. So, if an employee has the ability, resources and information to avert the risk from coronavirus, it’s unlikely that insubordination will qualify as “appropriate steps”, unless the danger is particularly acute. However, the quality and transparency of the employer’s risk assessment will also be an important factor.

7.6. Whistleblowing considerations

7.6.1. Similarly, Section 47B ERA 1996 affords workers protection against detriment on the grounds that they have made a qualifying protected disclosure and s103A protects employees from dismissal in the same circumstances. A protected disclosure can include information which tends to show that the health or safety of any individual has been, is being, or is likely to be, endangered. So, disclosures about failures to protect employees or service users from coronavirus will be likely to qualify if a worker has a reasonable belief that people’s health and safety is being put at risk.

7.6.2. Similarly, where workers or employees consider that “a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject” and disclose information about the same to their employer (for example, citing concerns about alleged breaches of the general duty under s.2 Health and Safety at Work Act 1974), a prescribed body or some other body in certain narrow circumstances, they may be protected from dismissal or detriment due to that reason.

7.6.3. Workers reporting to their employer (or government agencies) about the abuse or misuse of the furlough scheme might also fall within the scope of making protected disclosures, particularly if it appears there has been an attempt to conceal any errors made. However, a mere refusal to do something proscribed by the scheme may not fall within the definition of a disclosure of “information”.

7.6.4. Considering the judgment of the Court of Appeal in Chesterton v Nurmohamed [2017] IRLR 837, it may not be difficult to show that disclosures about misuse of taxpayer’s funds or health and safety from coronavirus fulfil the public interest requirement at s43B ERA 1996. However, given the UK is now entering a recession, it remains to be seen how many (or few) workers attempt such claims.

7.6.5. Where claimants bring whistleblowing claims, or health and safety claims under s100(1)(a) and (b) ERA 1996 (in addition to claims regarding trade union activities and others), they may apply to the employment tribunal for interim relief, pursuant to section 128 ERA 1996. Orders for continuation of employment contracts will be particularly valuable for claimants, and expensive for respondents, in circumstances in which employment tribunal final hearings are subject to long delays.

7.6.6. However, the bar that a claimant must surpass before a tribunal will award interim relief is high. They must show they are “likely to succeed” and this test applies to all elements that the claimant must prove. For a recent summary of relevant issues that must be taken into account, see Choudhury P’s decision in Hancock v Ter Berg UKEAT/0138/19/BA.

8. Matters for further clarification
We have identified a number of areas in which further clarification of the legal position would assist practitioners, namely:

For those who live with someone who has been shielding, is it possible to argue that they have suffered direct associative disability discrimination under s.13 EqA 2010?
For those who live with someone who has been shielding, is it possible to argue that they have suffered indirect associative disability discrimination due to an extension of the principles Chez or will it remain the case that discrimination by association does not extend to indirect discrimination protections under s.19 EqA?
Whether a decision to furlough or not to furlough an employee who was formerly shielding could be discriminatory? For example, what if an employer decides to furlough the employee in that situation due to concerns over their return to the workplace? And is there a material difference in the circumstances where the employer pays the employee in full rather than at the 80% rate?
In relation to section 44 and 100 of the Employment Rights Act 1996, is it the case that an employee who is ‘clinically extremely vulnerable’ is better placed to bring such a claim? When there is no shielding guidance in place, in what circumstances is someone who is ‘clinically extremely vulnerable’ in serious and imminent danger by presenting themselves at work?
Is it likely that, in the current circumstances, greater expectation and liability is placed onto employers with respect to any risks posed to an employee as part of their commute to their ordinary workplace?

Members of ELA Covid-19 Working Party

Co-chairs: Paul McFarlane, Capsticks; Kiran Daurka, Leigh Day
Gus Baker, Outer Temple Chambers
Shubha Banerjee
Emma Burrows, Trowers & Hamlins LLP
Sarah Chilton, CM Murray LLP
Shantha David, UNISON Legal Services
Micheala Drazek, Greenwoods GRM LLP
Peter Edwards, Devereux Chambers
Manus Egan, Thomas More Chambers
Clare Fletcher, Slaughter and May
Caron Gosling, Deloitte LLP
Beth Hale, CM Murray LLP
Howard Hymanson, Harbottle & Lewis LLP
Daniella McGuigan, Ogletree Deakins International LLP
Nadia Motraghi, Old Square Chambers
Sally Robertson, Cloisters
Bruce Robin, UNISON Legal Services
Katie Russell, Burges Salmon
Michael Salter, Ely Place Chambers
Paul Singh, National Education Union
Louise Skinner, Morgan, Lewis & Bockius UK LLP
Catrina Smith, Norton Rose Fulbright LLP
Caroline Stroud, Freshfields Bruckhaus Deringer
Lorrelee Traynor, NHS Wales
David Widdowson, Abbiss Cadres