COVID-19, Furlough and a Failure to Make Reasonable Adjustments

Many thousands of carers continued to toil under conditions of enormous pressure throughout the COVID-19 pandemic. However, an Employment Tribunal (ET) has found that a care home provider breached its duty in failing to place an extremely clinically vulnerable woman on furlough (Devaney v Porthaven Care Homes No 2 Ltd).

The woman had Crohn's disease and received advice from the NHS that she should shield at home during the pandemic. The provider did not take advantage of the furlough scheme, instead operating a provision, criterion or practice (PCP) whereby only those who attended work in person received their full pay. Those who did not received statutory sick pay (SSP).

In practice, the PCP meant that, as a result of following NHS advice and remaining at home, the woman received less than a quarter of her full pay. Had the operator acceded to her requests to be placed on furlough, she would have received 80 per cent of her usual employment income.

After she launched proceedings, the ET recognised the very great challenge faced by care home providers during the pandemic. In order to encourage staff to attend work, many of them reasonably chose not to take advantage of the furlough scheme, the primary purpose of which was to support businesses that were forced to close after the first national lockdown was announced.

Upholding the woman's complaint, however, the ET found that the provider failed in its duty under the Equality Act 2010 to make reasonable adjustments to cater for her disability. The PCP placed her at a substantial disadvantage compared with colleagues who were not extremely clinically vulnerable.

The provider failed to acknowledge that she was not merely vulnerable but extremely clinically vulnerable. As a care provider it could reasonably have been expected to understand the difference. It ought to have known that the PCP resulted in her facing a choice: either to ignore the NHS shielding advice and risk the consequences of catching COVID-19, or to be financially disadvantaged by remaining at home.

The provider was not a small employer, having about 1,100 personnel. It would have suffered no financial loss in enabling the woman to benefit from the furlough scheme and that would have been a reasonable course to take. If not agreed, the amount of her compensation would be assessed at a further hearing.