Employed & shielding have no legal protection

[YorkshireTeacake]

Can't believe this. Am fuming. There is no legal protection in place for the shielding who are employed.

The 50 page guidelines just some best practice tips for employers, but none of it is mandatory.

So you could legally sack someone who is shielding.

Unbelievable.

I'm shielding and disabled and I have a job and family - imagine!

Anyway, I can work from home, after a fashion, so no need for me to be furloughed. I'm horrified that some of my fellow shielded folk have no legal protection though.

I know a lot of people are still very busy with work and home ed etc, but it would be great if those who are keen to contribute or in need of work could become part of the mammoth task force needed for contact tracing.

..No names organ transplant recipients are on immunosuppressents to prevent organ rejection, but that in itself doesn't mean they are not fit for work in general. So, wont get those disability benefits

I'm shielding a child with Cystic Fibrosis. I'm a single parent with two DC, only one has CF. I have been talking to her CF hospital team and also my manager and colleagues all day. I work in early years education and we are expected to open on June 1st for all our children who want to come back. My manager is being fantastic and not expecting me back yet but nobody knows what will happen, even the CF team are clueless and telling me I need to do what is best for my family, I have to make the decision. Most people think the shielding is for older people, it's true. I had a job I loved and two happy children before all this. Now we are in limbo with an uncertain future for all three of us.

Why do you think they have no legal protection? They have unfair dismissal rights same as before, and protection against disability discrimination which will apply to lots of shielding people.

In circumstances where furlough is available, it is highly, highly unlikely to be a lawful dismissal if an employer sacks someone because they are shielding.

Reading that, any company that sacked somebody for shielding would almost certainly lose at an employment tribunal. I expect most legal advisors would advise them not to do it.

Disability discrimination act does give some protection for some.

But I have been made redundant previously even though I'm covered under the DDA.

I'm in a different boat, as I'm out of work, but can't find a job that will let me work from home.

I had a link to the Telegraph re shielding, but when going back to check it has moved on and can’t find now - it was only posted 2hrs ago. Basically was saying that Discrimination for shielders would mean that they had a case under DDA.

Sometimes is not about one upmanship or being right, it’s about helping people, not scaremongering.

I hope anyone affected is writing to their MPs.

Just lightening the tone, mine is Gove. DH bumped into him just before elections, won’t say what transpired as not derailing to turn it political. But I was MOST aggrieved that he couldn’t tell me what was in his shopping basket

I expect most legal advisors would advise them not to do it.

Well yes - there's no legal precedent so it would be risky for an employer to dismiss someone at this point as they just don't know which way a tribunal hearing would go. I should imagine many will want to wait a little while to see how things pan out before taking drastic action which might come back to bite them in the arse later.

Belly Mujinga, the poor vulnerable station worker who died after being spat on at work raises a lot of questions about employers' duties to vulnerable (and by extension, extremely vulnerable) employees. Awful situation.

I think what's key at this point is for affected workers to make sure their employers are fully aware of their vulnerabilities and/or shielded status (ideally by email so there's a record).

There probably aren't many shielding people at immediate risk of dismissal this early on (not least as we're still in the initial shielding period) but obviously can see why it's a worry all the same,

There was a question about plans for shielded people past the 12-week period at today’s Downing Street press briefing. I’ve put the full text (long) on this thread:
www.mumsnet.com/Talk/_chat/3888059-chat-for-those-who-are-shielding?pg=22

Egghead
Yes that was very waffly, ty for linking to tour post.
I tape the briefings and leave until after dinner.

Wondering if the op would like to actually give some input....

In circumstances where furlough is available, it is highly, highly unlikely to be a lawful dismissal if an employer sacks someone because they are shielding

That assumes that furlough will be available for the critically vulnerable as long as shielding is recommended. If that is the intention, it would be helpful if it were announced sooner rather than later (no later than when they extend the shielding duration, which everyone thinks will be necessary)

I hope there is a mass name and shame for any organisations not supporting their shielded workers

”That assumes that furlough will be available for the critically vulnerable as long as shielding is recommended.”

I’m not making any such assumption. I am being very specific that while it is available it is unlikely to be lawful. Therefore when it is no longer available it will be more likely to be lawful, but even then, it would be very risky unless the shielding person will literally not be back for months. They won’t be entitled to be paid (unless things change) so it won’t cost the employer anything to keep them employed, reducing the strength of any argument for dismissal.

It’s just simply not true to say there is no legal protection, but there is only so much time an employer can be expected to hold a job open for someone not likely to return for months.

Friend of mine is shielding his employer is refusing to furlough and only paying SSP.

but there is only so much time an employer can be expected to hold a job open for someone not likely to return for months.

But this is where we are isn't it? This first period is three months. We will soon be heading towards six months. How much longer will they hold jobs open for and honestly, if they aren't going to carry on paying us some of us are going to have a difficult choice to make.

What are their reasons Concerned?

Just that a consultation with senior management team felt ssp was the way they wanted to proceed and no further explanation why

citizens advice According to which you can be furloughed if you live with someone in shielding category, which might be of interest to some people.

It was terrible at the outset when priority for furlough was extended to people who needed childcare and the shielded group were just added as an afterthought. I hope the extension of furlough gives some reassurance to shielded employees.

I disagree that there’s no protection for shielded workers in employment law. Most will be disabled and covered by the Equality Act. It would be unwise for an employer who could furlough someone at no cost to sack them instead and could leave them open to discrimination claims.

I agree that disability discrimination won't provide legal protection if this goes on a long time for the reasons stated above.

It is a strange situation because we are not actually too ill to work in many cases, as others have said. We are being asked explicitly not to work.

But there is nothing for employers that I can see except some "tips" on best practice, which they are free to ignore?

I just don't see how this will work long term. If lots of shielded end up having to go back to work, then what? They get really sick and die, which is terrible, plus the NHS will get overwhelmed again?

Just all seems a massive cop out.

”Just all seems a massive cop out.”

What’s the alternative though? How long should an employer have to hold a job open for? How long should they have to pay them for, if government furlough money is no longer available?

Reading that, any company that sacked somebody for shielding would almost certainly lose at an employment tribunal

I’m not sure that’s a given. I think there is a case until furlough ends but employers can argue they need someone to do the job and if you’re unable they had no option but to let you go. That they can’t afford to pay you and employ someone else to do your role.

It’s difficult but I don’t think it’s a given if the employee is needed, and you’d have to assume they are, otherwise why employ them, that it would be unlawful to not keep them employed when they can’t work.

If they aren’t needed then the employer can move to redundancy.

As employment rights are not protected in this scenario it’s down to the employer.

It will be similar with people who can’t or don’t want to work as they are shielding someone or because they have no child care. There is no protection and arguably the employer needs someone to do the role, so if you can’t they need to replace you..and if they don’t need the role performed they can move to redundancy.

Concerned, my last post was for your info re furloughing, missed that bit off as went off at a tangent!

What’s the alternative though? How long should an employer have to hold a job open for? How long should they have to pay them for, if government furlough money is no longer available?

I do take your point. The whole thing is a conundrum.

But I would also ask you the same question. What the alternative is?
For all shielding to end up on SSP, which is not enough to live off, or face going to work and possibly getting very sick, and overwhelming the NHS for everyone?

I’ve just been made redundant whilst shielding, not because of Covid but in spite of it and based on a very spurious business case. There is no extra protection because of the situation.