The outcome of an employment tribunal, which took place this year involving a care home, provides a number of lessons for employers in the adult social care sector. In the case, a clinically extremely vulnerable care worker who was forced to work during the COVID-19 pandemic against NHS advice, won a disability discrimination claim as a result of the employer’s failure to make reasonable adjustments.i
Case background
Ms Devaney was employed as a carer and team leader by Porthaven Care Homes. On 21st March 2020 she received a letter from the NHS, as did many people in the UK at the time, informing her that she was clinically extremely vulnerable. This was because she suffered with Crohn’s disease and the letter instructed that she was not to leave her house and had to avoid all face-to-face contact for at least 12 weeks. This was commonly known at the time as ‘shielding’.
Unfortunately for Ms Devaney, her employer did not account for her condition and the serious consequences it could have for her during the pandemic. It considered her to be in the ‘at risk’ category. Ms Devaney was in fact in the ‘very high risk’ category.
On 18th March 2020, Porthaven provided all staff with a guidance letter to the effect that it would pay Statutory Sick Pay (SSP) for 14 days for those employees who were ‘at risk’ and had to self-isolate.
Ms Devaney received another letter from the NHS in April 2020, which advised that she sign up to the Government register of clinically vulnerable people and which reminded her that she should not leave her home. The letter said it could be produced to her employer to show that she could not work outside her home and that she did not require a GP fit note.
In line with the advice in that letter, and after receiving a further letter extending her shielding period, Ms Devaney was absent from work from 23rd March to 31st July 2020. She returned to work on 3rd August.
Because of Porthaven’s decision to pay only SSP during the whole of the 19-week absence period, Ms Devaney experienced what the tribunal described as a ‘significant financial loss’, because her normal weekly wage of £405 became as low as £95 per week on SSP.
There had been a specific request by Ms Devaney on 26th March 2020 that her employer place her on furlough under the Coronavirus Job Retention Scheme. Porthaven could then have claimed a grant under the Scheme for 80% of Ms Devaney’s wages and she was prepared to forgo the remaining 20%, rather than just receive SSP. Porthaven, however, said that because Ms Devaney was a key worker and the care home was still operational, furlough did not apply. This was in fact incorrect.
The employment tribunal found that Porthaven either ‘deliberately and/or through an oversight, failed to acknowledge the difference between workers who were clinically extremely vulnerable and those who were merely vulnerable’. It decided that, as a care provider, the company could have reasonably been expected to know the difference.
The tribunal found the company liable for disability discrimination because it had failed in its duty to make reasonable adjustments under section 20 of the Equality Act. There are lessons to be learned for employers in the adult social care sector. There were three areas of misunderstanding that led to Porthaven’s liability in this case, which could be an issue for other providers arising from events during the pandemic. Before looking at those three areas in more detail, it is important to note that the period from mid-March 2020 onwards was extremely stressful and distressing to businesses in the care sector, to their residents and the residents’ families and friends. Therefore, there can be no doubt that care operators were under significant pressure.
Key mistakes
Firstly, Porthaven had failed to appreciate the difference between ‘at risk’ and ‘at very high risk’. It had not properly considered Ms Devaney’s severe condition and the impact that exposure to COVID-19 would have on Ms Devaney because of her condition.
The second mistake was a failure to appreciate how the law on disability discrimination operates. All employers must ask themselves four questions when dealing with an employee who is disabled as defined by the Equality Actii:
- Is there a provision, criterion or practice (PCP) – or, put simply, a rule that puts a disabled person at a substantial disadvantage compared with persons who are not disabled? In the Devaney case, the PCP was the policy of only paying care staff their full wages if they attended work in person during the pandemic in 2020, and if they did not, they would only be paid SSP.
- If there is such a rule, does the employer know, or could it reasonably be expected to know, that that the employee is likely to be placed at any such disadvantage?
- If yes, are there steps that could be taken by the employer to avoid such disadvantage? In the Devaney case, Porthaven could have placed Ms Devaney on furlough and claimed a grant under the Scheme.
- If so, would it be reasonable for the employer to take those steps? The tribunal in the Devaney case found that it would have been entirely reasonable. This is because there would have been no cost to the company in putting Ms Devaney on furlough and claiming the grant under the Scheme.
The third mistake was a failure to recognise that the furlough scheme could be used for those clinically vulnerable employees who were required to shield.
Facing challenges
It is quite possible that there may be many providers of adult social care who, albeit unwittingly, have made errors during the pandemic period in the way they have dealt with employees.
From an employment law point of view, the worst-case scenario for a care provider is a lengthy and drawn-out employment tribunal claim for discrimination, perhaps lasting between two and three years. A case can take up a lot of management resource and cost tens of thousands of pounds in legal fees which, in nearly all cases, will not be recoverable from the claimant, even if there is a finding of no liability for the company. If the company is found to be liable, it may face a significant uncapped award of compensation, plus an award for injury to feelings alone as high as £50,000. This is not to mention the bad press arising from the fact that all tribunal judgments are published online by the Tribunals Service and can be accessed by a simple Google search.
Care providers may draw some comfort from the fact that there is a three-month time limit from the date of discrimination for the employee to file their claim with the tribunal, although that time limit can be extended if the tribunal thinks it is just and equitable to do so.
Provider protection
What can employers in the care sector do to protect themselves? Documenting procedures is vital. Cases are often won and lost on paperwork, or a lack of it. Many providers will have insurance to cover tribunal claims. If a claim is threatened or received, the company’s insurance broker should be notified immediately, because the insurer may insist on certain steps being taken. Any negotiations to resolve matters with employees who complain should always be carried out on a ‘without prejudice’ basis. Also, it’s important that any negotiations involve the employee entering into a binding settlement agreement prepared by the company’s lawyers or HR advisers to ensure they cannot issue or continue with proceedings.
Management in particular should be regularly trained on how to deal with equality and diversity issues and keep records of training received, to show its attempts to maintain best practice. Getting it wrong can be a time-consuming and expensive business – a headache employers in the sector could well do without.
The Advisory, Conciliation and Arbitration Service (ACAS) offers free training for employers and employees via e-learning, which includes equality and diversity training: www.acas.org.uk/online-training. Paid-for training is available by other providers, including www.highspeedtraining.co.uk and www.keystonetrainingltd.co.uk. I hope providers find these points of reference useful. The height of the COVID-19 pandemic may be over but the long-lasting impact of such a significant global emergency may only just be truly coming to light.
CMM has approached Porthaven Care Home for comment but is yet to receive a response.
References
i P Devaney v Porthaven Care Homes No 2 Limited (case number 2304184/2020)
ii A person is disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. ‘Substantial’ means more than minor or trivial. ‘Long-term’ means the effect has lasted 12 months or more or is likely to do so.