Return To The Office – Anxiety, Discrimination And Reluctant Employees – Employment and HR

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.