At our webinar earlier in the month (essentially, Life after Covid plus New Proposals) I promised as usual to respond to participant questions via this blog. Here is the first. Please don’t write in and tell me that Covid isn’t over – I know, but that would be a politically inconvenient truth at present so for the time being employers will need to deal with the government’s seeming view that it is. All of this may therefore change if there a new more aggressive Variant of Concern appears over the horizon or the lifting of the previous guidance and restrictions proves to have been premature.
Will it now be reasonable to include Covid-related absences into triggers for absence management?
Yes – in fact, it always has been, but the Government’s relegation of Covid to something we just have to live with reinforces the argument that there is no longer any case for treating it differently from any other illness. However, that broad principle hides a number of more specific questions:
- It is recognised that where the absence is caused by a disability, the employer’s duty to make reasonable adjustments can require it also to look again at whether the rigid application of its usual sickness management procedures is entirely appropriate. The EHRC’s Statutory Code of Practice on Employment does not say this in terms, but it does refer to granting additional time off for medical treatment and equally to allowing departures from comparable policies around disciplinary and grievance matters and redundancy selection, which include the discounting of disability-related absence from redundancy selection criteria.
However, is Covid or long Covid a disability in the first place? Most likely not because it lacks the necessary actual or expected duration (see here). That is not to say that a particularly brutal bout of long Covid cannot be a disability once it has lasted a year, but it will rarely count as such from the start.
- If the employee tests positive for Covid, but feels fine, he may consider that he is now entitled to go to work anyway. If, as it should, the employer then sends him back home for a week, does that period count towards the absence management triggers? After all, the employee is able and willing to work, so it hardly seems fair to penalise him for the employer’s decision not to allow him to do so. I do not agree with that view. Of course if the employee can WFH then there is effectively no absence and so the question does not arise. However, if he cannot, then the fact remains that he is suffering from a medical condition which makes it impracticable for him to work, simply because the employer has no realistic legal or employment relations choice but to exclude him from its workplace. There may soon come a point where herd immunity means that an employer can knowingly expose its employees and visitors to the heightened risk of infection caused by allowing Covid-positive employees into the workplace, but at the moment that would constitute a clear failure to take all reasonably practicable steps to reduce the risk of infection and harm to others. In my view, if the employee cannot attend or perform work because of his medical condition, that should fall under the absence management rules, even though he may himself be willing to work.
- Does this principle extend to the company’s sick pay rules? In my view, yes. There is nothing now in being off with Covid or long Covid which justifies any departure from the employer’s usual scheme. Even in those very rare cases where the employee does count as disabled, that does not by itself require any more generous provision. There is no evidence that Covid-sufferers or disabled employees generally are any less tempted by the sort of sneaky ‘sickie’ at the margins now and again which sickness management procedures generally and restricted sick pay in particular are designed to discourage.
- Some employers chose over the course of the pandemic to factor their employees’ vaccination status into their sick pay schemes, operating on the principle that if you contracted Covid while unvaccinated, there was a decent argument that you had to some extent brought it on yourself. At this stage, and provided that appropriate exemptions are made for those medically unable to be vaccinated, that distinction remains lawful.
By extension, though I have not seen this in practice, it might be argued that it should also be lawful to operate a tougher set of sickness management triggers for Covid-related absences of unvaccinated employees. However, I would recommend considerable caution on that front – a sickness dismissal is supposed to be based on the employer reaching the point where (paraphrasing wildly) it cannot be expected to bear any more. The adverse impact on its business of a particular length of absence is not affected by the alleged degree of the employee’s contribution to it, if any. Dismissing unvaccinated employees more quickly or for lesser levels of Covid-related absence than would apply to the fully-jabbed, therefore, would risk looking more like punishment for their refusal to be vaccinated than an objective response to the fact of their absence.
