A clinically extremely vulnerable care worker who was forced into work during the pandemic against NHS advice has won a claim for failure to make reasonable adjustments.
The remote south London tribunal heard that Ms Devaney’s employer failed to make reasonable adjustments and either “deliberately or through an oversight” failed to acknowledge how vulnerable she was, and made her choose between the risk of catching Covid or only receiving statutory sick pay (SSP) during the pandemic.
Devaney, who was a carer and team leader in the Porthaven Care Homes-owned Lavender Oaks Care Home in Carshalton, was still employed when she filed a claim form on 16 August 2020 and continued to work there throughout proceedings.
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The tribunal heard that on 21 March 2020, Devaney was issued a letter from the NHS advising her that she was clinically extremely vulnerable because of her Crohn's disease, which instructed her to not leave the house and avoid all face-to-face contact for a minimum of 12 weeks.
The tribunal described the letter’s instructions as “explicit” and said a key finding of the tribunal was Porthaven Care Homes’s failure to pay “sufficiently close attention” to Devaney’s condition and the consequences of it during the pandemic. It found that the firm placed her in the ‘at risk’ category, rather than the ‘very high risk’ category she was actually in.
Porthaven released a guidance letter to staff on 18 March 2020 advising it would pay SSP for 14 days for those who were ‘at risk’ and having to self-isolate. Devaney received another letter in April 2020 advising her to sign up to the government’s register of clinically extremely vulnerable people and reminded her she should not leave her home. The letter stated: “This letter is evidence, for your employer, to show that you cannot work outside the home. You do not need a fit note from your GP.”
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Devaney told the tribunal she took the advice of the letter and was absent from work from 23 March until 31 July, with her first shift back to work commencing on 3 August, as she had another letter advising her shielding period had been extended, which lasted for 19 weeks in total.
Devaney found that her employer's decision to only pay SSP caused her a “significant financial loss” as she ordinarily received £405 per week, and this was reduced to approximately £95 per week on SSP.
Devaney made a request to her employer on 26 March 2020 to apply to be furloughed under the coronavirus job retention scheme (CJRS) and attached the letter she received from the NHS. She received a reply from her line manager, Ms Hadizad, on 6 April 2020, who said that Devaney was a key worker and the care home was still operational, so furlough didn’t apply.
Hadizad also said the NHS letters seemed to “suggest” she shouldn’t come to work, and therefore it was her choice and should claim SSP.
The tribunal found that Hadizad misrepresented the context of Devaney’s letters and risk status and found it “inappropriate” to describe the NHS’s advice as a suggestion, and for putting the onus on Devaney to decide if she should attend work. Devaney replied with information that as a shielding worker she could be furloughed, and forwarded the NHS letter from April that advised her against working.
The care home’s regional director, Ms Astill, wrote to Devaney on 16 April to advise that the vast majority of the firm’s at-risk workers, including Hadizad, were continuing to attend work and that they believed she could continue to work safely in the care home. The tribunal said she accepted that Devaney could have been furloughed but Porthaven chose to not do so, as a matter of corporate policy.
A risk assessment was done for Devaney on 28 April and suggested adjustments could be made, such as putting her on admin duties in an office on her own, but Devaney told the tribunal this was still a high level of risk for her.
Devaney forwarded further government advice on the CJRS, which said shielding workers can be furloughed, but Hadizad instead offered another risk assessment. The tribunal noted that this was still within Devaney’s 12-week compulsory shielding period from the NHS.
On 29 April, Devaney told Hadizad that she was instructed to avoid all face-to-face contact and not leave her home. She asked for a medical suspension and advised she was considering issuing a tribunal claim for discrimination.
On 5 May, Hadizad asked Devaney to attend the home for a risk assessment, which she refused to do. On 13 May, Hadizad also refused a request for suspension on full pay, so Devaney raised a grievance, stating: “It seems much of what I say is barely taken notice of.”
On 8 June, Devaney complained she had not been contacted about a grievance meeting, and a video call had been held on 15 May, but it was not upheld because she did not attend a risk assessment meeting in the home, and she continued to receive SSP until her return to work on 3 August 2020. Devaney accepts, however, that she was paid 84 hours’ holiday pay at her full rate while she was shielding.
Employment judge Barker said that Porthaven Care Homes either “deliberately or through an oversight failed to acknowledge the difference between workers who were CEV [clinically extremely vulnerable] and those who were merely vulnerable”.
He added that, as a care provider, the firm could have reasonably expected to know the difference. “They ought to have known that she was being faced with a choice as a result of their policy of either to ignore the NHS advice and risk the consequences for her of catching Covid, or to be financially disadvantaged by remaining at home.”
Alan Lewis, partner at Constantine Law, said the decision illustrated the degree of care expected of an employer when considering its duty to make reasonable adjustments to a provision, criterion or practice that puts a disabled worker at a disadvantage compared with workers who do not have that disability.
Lewis added that the furlough scheme was available for the respondent to use and was not limited to businesses that were struggling financially. “Having reached that conclusion, it was a simple step for the tribunal to find that the respondent failed to make a reasonable adjustment by putting the claimant on furlough leave and paying her 80 per cent of her wages, which it could have reclaimed under coronavirus job retention scheme.”
A remedy hearing is to be scheduled to determine Devaney’s compensation.
Porthaven Care Homes has been contacted for comment. Devaney could not be reached.