Putting Vulnerable Employees on Furlough – How Do I Handle It?

For April 2020, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?” 

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

I am an HR Manager at a business which is permitted to operate during the current lockdown. One of our operatives has advised that he is not happy to attend work due to a medical condition and wants to be placed on furlough. How do we handle it?

Your starting point should be to clarify the employee’s specific circumstances in light of the current Government guidance. The Government has identified two relevant risk categories – “vulnerable” and “extremely clinically vulnerable”.

If your employee is in the latter category, he should have received a letter from his GP to indicate that he is extremely clinically vulnerable due to a particular condition and advising him to “shield” at home. If this is the case, and your employee cannot work from home, you should consider placing him on furlough, subject to the eligibility rules for the Job Retention Scheme. It would be reasonable to request a copy of the letter received by the employee, especially as this might be necessary for audit purposes in the future. Given the current circumstances, you might have to accept a photograph or scan copy of the original letter.

If your employee is not “extremely” clinically vulnerable, they might still have a relevant condition which places them in the “vulnerable” category. This grouping includes the over 70s and those with certain chronic or underlying conditions, including respiratory issues such as chronic asthma. It also includes the seriously overweight. You should ask the employee to identify their medical condition (if it is not already known to you) and ascertain if this falls inside the “vulnerable” category. 

The Government’s guidance strongly advises vulnerable persons to be “particularly stringent” in following social distancing guidelines. This includes avoiding non-essential use of public transport, avoiding small and large gatherings and working from home where possible.

If your employee can be supported to work from home, you should do so. If the employee cannot work from home, the position is different. The Government has published guidance for employers on Coronavirus which recognises that:

“All employees should be encouraged to work from home unless it is impossible for them to do so. Not everyone can work from home: certain jobs require people to travel to, from and for their work – for instance to operate machinery, work in construction or manufacturing, or to deliver front line services 

If you are satisfied that this employee does fall inside the “vulnerable” group, you should consider your approach most carefully before requiring him to attend the workplace. It would be prudent to carry out a specific health and safety risk assessment, in line with your statutory obligation to provide a safe place and system of work. You could reach out to occupational health advisors for their assistance, although this might not be necessary or indeed possible in the current circumstances.

Your response might vary greatly depending on the circumstances of your business and the workplace itself, as some businesses will naturally be able to implement social distancing and suitable hygiene measure with more ease than others. If you conclude that the employee cannot safely attend work, and cannot work from home, you should consider placing him on furlough or paid leave.

Failure to properly consider an employee’s health and safety could be deemed a breach of your duty of care as an employer. This in turn could result in a claim for constructive unfair dismissal, which depending on the circumstances could include allegations of discriminatory treatment. Additionally, a vulnerable employee who subsequently contracts Covid-19 could potentially bring a personal injury claim against their employer.

From a practical perspective, it will be important to deal with this request in a reasonable and thorough manner, both to meet your obligations as an employer and to maintain a positive relationship with your employee which will continue once normality is restored.