Anyone who has walked through the streets of St Helier in recent weeks will have noticed an increased buzz in town: there are more people walking around, and more people back at work. Jersey is very much open for business, the default assumption being that the workforce generally are happy to WFO (Work From the Office).
But does this assumption reflect the reality? Looking across the water to the UK, Boris Johnson seems to be having a hard time persuading office staff in particular to WFO, with city centres remaining quiet.
If this is a typical mindset, employers in Jersey may find getting staff to return to WFO more challenging than they expect, particularly where employees are moderate or high risk (vulnerable or extremely vulnerable). Some employees may also be anxious about the RTW (Return to Work), and the potential risk of exposure to Covid-19 for them or their loved ones.
Before pushing an employee to RTW, or threatening them with a sanction if they refuse to RTW, businesses should carefully consider both current public health guidance and the individual circumstances of the employee. If businesses get RTW wrong they could face various claims including potentially a claim for constructive unfair dismissal (and possibly a discrimination claim). If the reluctant employee does return and they suffer an aggravation of an underlying medical condition through being exposed to the virus at work (difficult to prove but not impossible), then they could bring a personal injury claim.
What is the Current Guidance? (as at 02/09/2020)
The current guidance from the States of Jersey is:
a) WFH (Work From Home) is no longer the default position, and employees are no longer being generally advised to WFH. Businesses are obliged to put in place measures to minimise the risk of contact between employees, to carry out risk assessments, and to ensure that physical distancing can be maintained;
b) Those at high risk (extremely vulnerable) should continue to WFH, unless they work alone and do not need to access public transport. If they are fit and healthy and physical distancing can be maintained then they can return to work; and
c) Those at moderate risk (vulnerable) should be encouraged to WFO, where it is not possible for them to WFH and where it is safe for them to do so.
Where an employee is in the moderate or high risk categories, it is likely that this will be due to age, disability or pregnancy, all of which are protected characteristics under the Discrimination (Jersey) Law 2013. To avoid a discrimination claim on one of these grounds, particular care should be taken to manage any RTW exercise. Where the individual has a disability, the focus should be on whether it is possible to make any reasonable adjustments to facilitate the RTW.
Where an employee in one of these categories can continue to WFH, this should be discussed with them as this may be the most appropriate way to continue until a vaccine is in circulation (or, in the case of a pregnant employee, her maternity leave ends). You should make sure these employees continue to feel part of the team as feelings of exclusion can also risk a discrimination or constructive dismissal claim.
Is anxiety about returning to work a disability?
The answer to this really depends on whether the individual is simply worried about RTW or the risk of 'catching Covid-19', or whether they have a clinically diagnosed anxiety condition. Simple worries are highly unlikely to amount to a disability or be protected under the Discrimination (Jersey) Law 2013. Employees in this situation could be invited back into the office at a quiet time to re-familiarise themselves with the environment and should be reassured that appropriate mitigation has been put in place in the office to manage the risk of Covid-19. Ultimately, if an employee refuses a lawful order to WFO a business can consider managing them out, but this would require careful consideration of the appropriate process. A Tribunal could well frown on warnings for misconduct in these circumstances. Involving occupational health is likely to be a better solution.
Where an employee has a medically diagnosed anxiety condition, which has lasted for, or is expected to last over 6 months, then this is likely to be recognised as a disability. In this situation, employers will need to consider what adjustments they can make to the workplace to facilitate the individual's participation in work.
Employers should consider:
a) Changing the way things are done, for instance moving the employee from a customer facing role to a non-customer facing role.
b) Changes to overcome barriers to the physical features of a workplace, such as assigning the employee a dedicated and secure office to minimise the risk of contact with other staff.
c) Providing additional support to help the employee overcome their anxiety, such as arranging for a car parking spot for the employee near to the office, which would allow them to avoid public transport.
It should be remembered that one of the purposes of the Discrimination (Jersey) Law 2013, and in particular the protected characteristic of disability, is to reduce the barriers for individuals accessing full and rewarding employment. Employers should be looking at ways to facilitate the participation at work of all their staff, even if temporarily.
What if an employee is not moderate or high risk, but they live with someone who is?
Carers are not protected from direct or indirect discrimination under Jersey law; nor do we have what is called "associative discrimination" which is where an individual is discriminated against because they are associated or connected with someone who is disabled or has another protected characteristic.
Despite the lack of legal protections for carers, businesses should still take care in the current environment to discuss the employee's concerns with them on an individual basis to see if they can be managed appropriately. A failure to handle an employee's legitimate concerns in a reasonable manner could cost an employer not only a good staff member, it could also cost the business a tidy sum in Tribunal awards.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
