Equality Act 2010

In making decisions about the need for an employee to return to work Managers must consider those employee that are likely to be protected under the Equality Act 2010. If there are aspects of work that can be done from home, this is likely to be a reasonable adjustment which must be considered for those who qualify under the Equality Act disability provisions.

To be protected the employee must have a physical or mental impairment which has a substantial and adverse effect on ability to carry out day to day activities. Certain health conditions, such as cancer and multiple sclerosis are automatically treated as disabilities. There may also be age discrimination issues.

Shielding Employees

Employees that are shielding will be disabled for the purposes of the Equality Act 2010 and insisting they come back to work may be unlawful as it could be classed as discrimination arising from disability or failure to make reasonable adjustments. Those people who are shielding are also protected from detriment or dismissal for a health and safety reason under the Employment Rights Act. If an employer insists on a return to the workplace, this may be a constructive unfair dismissal which could be automatically have no minimum qualifying period of employment being required to bring the claim. 

Discrimination by Association

The Equality Act 2010 also protects people from discrimination as a result of their association with a disabled person. Employers who give a blanket refusal to consider continued working from home would disproportionately impact people who are associated with disabled people. It is also likely that they have protection from detriment or dismissal as there are genuine health and safety reasons for needing to stay away from the workplace. As ever, each case needs to be looked at on its own facts.

Updated on 3rd June 2020

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