As businesses begin “the unprecedented process” of reopening their premises in the wake of the Covid-19 pandemic, disputes are likely to arise if employers take “a one size fits all” approach to the future return to work. This can be anything from claims of disability discrimination to automatic unfair dismissal, health & safety, whistleblowing and more.

Because the reopening of offices is a new set of employment and safety circumstances for employers to deal with, “that means a minefield of potential legal risks for employers to navigate here”, says Sophie Vanhegan, partner at GQ|Littler.

“Coronavirus is a hugely important health issue and, consequently, highly emotive,” Vanhegan says.

Types of claims could include:

• Disability discrimination: if employees who have a pre-existing condition such as cancer are shielding according to government guidance and are unable to carry out their role whilst working from home, employers could face a possible claim if they put these employees on unpaid leave or dismiss them. They may also face claims for failure to make reasonable adjustments if they don’t consider making adjustments such as transferring them to another role which could be done from home.
• Indirect sex discrimination: In the event that schools and nurseries remain closed or only open on a part-time basis, if employers dismiss employees with childcare responsibilities who struggle to work normal working hours in their usual workplace, this could lead to indirect sex discrimination claims if the practice detrimentally affects women and cannot be justified.
• Health & safety: There is possible exposure to claims if employers to not adapt workplaces to a sufficient degree to comply with social distancing requirements or bring on the return to the workplace too quickly.
• Automatic unfair dismissal: If an employee can prove they were dismissed as a result of refusing to go to work because they believed they were in serious and imminent danger and they could not be reasonably have been expected to avert that danger, their dismissal could be automatically unfair.
• Whistleblowing: It is possible that a complain that an employer’s workplace is unsafe could amount to a protected disclosure, and the employee would then be protected against detriment and dismissal on the grounds of their disclosure.

“A host of other claims are also possible,” Vanhegan went on to say.

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