Addressing COVID-19 challenges in social care: legal insights and best practices

Whilst some industries have started to move past COVID-19 restrictions and their impact in the workplace, healthcare industries and social care providers in particular should remain particularly vigilant about potential legal issues that may arise in the aftermath of the pandemic. This article explores recent cases related to COVID-19 and their implications on disability discrimination, mask and personal protective equipment (PPE) requirements, and whistleblowing. It also offers valuable learning points and best practices for providers to navigate these challenges effectively.

COVID-19 as a disability: an evolving legal landscape

Recent Employment Tribunal cases have shed light on the evolving treatment of COVID-19 and long COVID as disabilities under the Equality Act. These cases have provided a glimpse of how medical advancements have compelled the law to adapt over time. In cases in both the English and Scottish Employment Tribunals, rulings have been made in favour of claimants dealing with long COVID-19 and post-viral fatigue syndrome, recognizing them as disabled under the Equality Act 2010.

In Matthews v Razors Edge Group Ltd the claimant developed symptoms of COVID-19 in late March 2020 but suffered from ongoing symptoms including chronic fatigue, poor blood circulation, low iron levels and asthma. These symptoms were ongoing in June 2020 when she entered into discussions with her employer about a potential return to work. The Tribunal found that the symptoms were capable of being long term and ruled that she was disabled at the relevant time.

A similar verdict was reached in Burke v Turning Point Scotland. The claimant tested positive for COVID-19 in November 2020, and experienced severe headaches, fatigue, joint pain, loss of appetite, concentration difficulties, and other symptoms related to long COVID and post-viral fatigue syndrome. Despite some improvement, and two occupational health reports stating he was fit to return to work, relapses in symptoms hindered this, leading to his eventual dismissal in August 2021. The Tribunal concluded that Mr Burke was disabled within the meaning of the Equality Act 2010 during the relevant period due to his physical impairment from post-viral fatigue syndrome caused by COVID-19.

The cases serve as a reminder to social care providers to be cognisant of the definition of disability under the Equality Act 2010, when dealing with employees who have COVID-19 and in particular those who have symptoms following COVID-19.

Masks and PPE requirements: navigating controversy

Mask wearing requirements, particularly for businesses working in the social care setting, can be contentious. Recent cases have examined whether and under what circumstances mask-wearing requirements should supersede the autonomy of individual employees. Two specific cases illustrate the legal nuances and underscore the importance of carefully assessing non-mask wearing decisions.

In Convery v Bristol Street Fourth Investments Ltd, the Tribunal acknowledged the claimant’s aversion to wearing face masks due to anxiety stemming from a past trauma, meaning that mandated mask-wearing would cause severe distress and panic attacks. Her anxiety was recognised by the Tribunal as a disability, and consequently her dismissal for refusing to comply with the mask mandate was deemed unfair treatment due to her disability.

On the other hand, in Kubilius v Kent Foods Ltd, the claimant, a delivery driver, refused to wear a mask inside his van when visiting a client site, arguing that it was not a legal requirement. Despite specific requests from the client company, the claimant declined to wear a mask inside his own vehicle. The employer dismissed the claimant following disciplinary proceedings, which the Tribunal found fair given the requirement to maintain good client relationships and ensure a safe working environment. The Tribunal found that dismissal fair in the circumstances.

While employers may enforce mask-wearing requirements, they must carefully weigh these mandates against potential disabilities that may affect an employee’s ability to comply. Businesses operating in high-risk areas, like social care settings, should seek legal advice when faced with such complexities.

Good practice: the fine line between grievance and protected disclosure

At Hempsons we deal with many different types of cases on a day-to-day basis, which gives us a unique insight into trends and conversely risk areas. One recent Employment Tribunal claim Hempsons advised on underscored the significance of considering the risk of whistleblowing claims while dealing with employee issues.

The case centred around an employee raising concerns through email complaints, initially treated as part of a grievance procedure. However, upon reflection in the Tribunal, these emails were also deemed to include protected disclosures for whistleblowing protection. The case serves as a reminder for employers to consider the difference between a grievance and a protected disclosure. It is important to remember that the same complaint could activate both the grievance and whistleblowing policies.

A grievance will tend to be a matter of personal interest and does not impact on the wider public, for example a concern regarding inappropriate behaviour or conduct, harassment, or individual pay grade.

Under the Employment Rights Act 1996, a “protected disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the types of wrongdoing or failure:

  • criminal activity (or likelihood of criminal activity)
  • failure to comply with legal obligations
  • an actual or potential miscarriage of justice
  • a situation endangering someone’s health or safety
  • harm or potential harm to the environment
  • a cover up in relation to any of the above points

There must be reasonable belief in the truth and public interest of the disclosure. Crucially, protected disclosures do not need to identify that they are protected disclosures, nor do they need to follow a specific format.

In practice, there may be a significant overlap between the content of a grievance and the content of a whistleblowing disclosure. For example, in the case Hempsons recently advised on, the complaints consisted of:

Complaint 1: A complaint that staff did not have the required PPE on hand on shift. The claimant referred to the risk of catching COVID-19 and the lack of equipment that had been shown in a training video about the use of PPE.

Complaint 2: A further complaint that PPE had not been available in a situation where the claimant felt it should have been made available. The risk of catching COVID-19 and putting family members at risk was raised and that the lack of PPE affected the Respondent’s ability to keep staff safe.

As you can see, these examples were complaints presented to the employer on the basis that the claimant personally had not had PPE made available to them. However, when viewed in the context of the legal requirements set out above, it can be seen that these complaints could in fact qualify as protected disclosures, as well as containing elements of grievance.

There are often significant differences in the provisions of grievance vs whistleblowing policies, for example grievance policies are likely to offer more support to the employee, and there are ACAS provisions that employers are required to follow. It is important to assess at the outset whether either, or both, policies are activated by a complaint.

If you do receive a genuine protected disclosure, time is of the essence in investigating and containing that issue. You will need to ensure that you are complying with your own whistleblowing policy at all times. The vital element of whistleblowing protection to keep in mind from an employment law point of view is the protection from detriment. There is no legal definition of ‘detriment’ and it does not matter whether the employee is consciously or unconsciously subjected to detriment. As a result, the legal framework often becomes very complex and nuanced.

Should you receive a communication and be unclear on whether it is a grievance or a potential protected disclosure, seeking legal advice early can help ensure that the communication is dealt with properly, thereby minimising the risk of future issues arising. Our dedicated team of employment solicitors can help, so contact them today.