Covid 19 shielding and return to work

[carbonmade]

Hi all, hoping someone might be able to advise here - my DSis is on the extremely vulnerable list due to being a transplant recipient and on fairly hefty immune suppression. She actually had the transplant 12 years ago and has been remarkably well since then but is obviously more susceptible to illness than others. She's currently WFH along with the majority of her company but from noises coming from management expects her employer to be looking for people to start to move back into the office as soon as the gov start to lift restrictions which is likely to be before the end of the 12 week shielding period and certainly before there is a vaccine to actually make her safer.

My question is what her rights are/how she should approach this with her employer when it happens as we really don't want her to take the risk of going back to work at the moment? She's worked there for 10 years without any sick leave other than the odd bug that anyone would get, but the complicating factor is that they don't know she has had a transplant and although she can't remember exactly what she was asked when she joined the company she definitely would not have disclosed her condition as due to previous discrimination she's always been very reluctant to be open about health issues. I'm worried this means she isn't protected by the disability discrimination act (which I think covers transplant patients?) and even that they might actually be able to sack her for not disclosing before joining the company?

Sorry that's a bit long and rambling but we're really worried about this :(

If she’s on the shielding list she can’t go in, and she needs to let her employer know. They can furlough her if she can’t continue to work from home.

She shouldn't be back in the office at all just now, in fact she should be one of the last!

She needs to talk to her manager and explain her situation, honesty is key here. Shame they don't already know but they will need to now otherwise there is no reason for them not to expect her back in. They may refer her to occ health as this is new information and just to confirm any adjustments that they should be making

thanks Flowery - can they sack her though for not having disclosed her condition when she joined the company? that's her main concern - that she loses any protection because of her failure to disclose so gets sacked if she doesn't go in

They would be very very stupid to do that. Protection under the Equality Act because of a disability isn’t limited to those disabilities that were notified previously.

It can be gross misconduct if the application is not truthful though, that's what the OP/her sister is worried about. Does she have access to the Disciplinary policy from home to see if it gives any examples of what the company consider to be gross misconduct and a copy of her original application? Did she complete an application form because that is likely to have a statement on it.

Thanks both, yes Chic that is her worry - she would have completed an application form she thinks but as it was over 10 years ago she can't really remember what was asked - would the employer be likely to have retained a copy for this long? I will ask her if she can access the disciplinary policy.

For further context she is considered to be a high performer and is on the succession plan for a very senior role so ordinarily would be one of the last people they'd want to get rid of. She's starting to talk about just going back into the office to avoid disclosing and I'm getting so worried about her

There's a difference between disclosing/not disclosing and lying.

IIRC you don't have to disclose any previous health conditions as long as you don't outright lie. So if she was asked something like 'how many sick days in the last year' and she lied about that to cover the fact she was off for three months for a transplant, then yes she may be in trouble.

But it's not compulsory to disclose disablilities, to the best of my knowledge. And would this even be a disability, rather than a health condition which at that point would be over and done with?

I would be inclined though to just be bright and breezy about this. 'Hey boss, I've never told you this before because it's got nothing at all to do with my day-to-day performance, but I had a transplant before I started working here. That means I can't come back into the office yet as I need to shield at home. Such a PITA because I'm desperate to come back, but rules are rules.'

Expect no come back and get on with things as normal.

It's not very clear cut on any of the info I've read but I do believe it could be classed as a disability yes, as she will require ongoing immune suppression for the rest of her life and at some point another transplant - it does affect some aspects of her life although none that have ever caused an issue at work so far. Yes I do think the bright and breezy approach might be best but she's so bloody stubborn about keeping it a secret

It really really isn’t going to be gross misconduct to not have disclosed a medical condition that has had no impact on her work at all. And if she is a high performer surely there’s no reason to think they’d suddenly want rid of her for the sake of shielding for a few weeks? Especially as it seems possible for her to work at home.

She can just show them the sheilding letter and go from their. Hopefully they wont cross reference it with her job application a decade ago.

I don't think the reason that medics have decided she needs to be shielded are anything to do with her employers. For all her employers know she could have developed severe asthma in the past year.
I really don't think it will be an issue. I'd advise that she lets them know as soon as possible that she is in the shielded group at the advise fo her doctor. Should they ask why I'd advise that she responds that it was a medical decision.

I think the key to this has to be to have the conversation sooner rather than later. There's no clear indication from your post that she has any real reason to worry, and she won't know whether that is the case until she does have that conversation. There are certainly issues here that she can't possibly know the answer to until she asks the question. For example, it's relatively easy to make a guess at her having a fair degree of protection under the Equality Act whilst the formal shielding process is in place, provided that there is no reason that she cannot do her job from home in the longer term.

If she would struggle to do the whole job from home in the longer term, that may raise questions as to how far the employer can go to provide reasonable adjustments that enable her to. But if she is waiting on a vaccine that nobody has even created yet, for which there is an undefined wait, then that could be a very different situation. It may not be deemed reasonable for the employer to make those adjustments, where possible, for a year or more.

So I think she will have to accept that there is an element of "one step at a time" to this, and some answers will only become clear in the fullness of time. But the first steps is to ask the question.

Can she send them a copy of her shielding letter from the NHS?

Ha, I had a transplant 16 years ago and I am also very secretive about it! I namechanged on here because I was posting stuff related to it.

I’ve never disclosed it on a job application. The wording is something like ‘do you consider yourself disabled?’ If you don’t (and I don’t) then you don’t declare it.

Does she have a shielding letter?

I would assume they have the application still, yes as would keep for 6-7 years after she left and also would assume that she filled out a medical form, for which she would have had to declare any illnesses etc.

Has she mentioned she's on the 12 weeks list? If she has a letter, when we're getting closer to the return date or when plans start to be made, I would simply send a copy of the letter to HR. She's not then obliged to add further information as to why. Obviously most people would, but she's entitled to say its personal and doesn't affect her in her day to day work life. That's all they're bothered with. If she then doesn't declare, then she's still not covered under dda.

But what you're asking, yes she could technically be sacked for not disclosing. Although, I'd have thought unless she was deemed a problematic staff member this is unlikely. However, I do know in similar situations some feel it calls into question their moral compass etc.

But what you're asking, yes she could technically be sacked for not disclosing

It would be highly unlikely that that any such dismissal would be held to be lawful, unless the failure to disclose impacted on their ability to undertake the role, and was therefore a material fact in the decision to appoint. There has never been a legal requirement to disclose disability, and you quote relevance to legislation (the DDA) which was repealed ten years ago and replaced by the Equality Act 2010.

With the exception of one or two named conditions which are deemed to be disabilities from the point of diagnosis, no condition is automatically deemed in law to be a disability. And many shielded conditions would not, either on legal grounds or on benefits grounds (PIP) be deemed disabilities. The two things are different. Not all disabled people are shielded. Not all shielded people are disabled.

And it is very much a matter of personal approach and attitude as to whether one considers oneself to be disabled; and quite definitely a matter of choice whether one declares a health condition or disability unless the failure to declare materially affects ones suitability to do the job.

The question here is really, what happens if she can't return to normal working. In the short term, as I said, I think any employer making it difficult for an employee who is potentially vulnerable would be closely scrutinised by a Tribunal. But that obviously is going to have some limitations, and one of those is very likely to be how long the situation continues and the extent to which the employer can reasonably be expected to manage that in the longer term.

@Moondust001
I think you're missing the point here.
She signed a declaration stating she'd shared all of her medical history pertaining to the conditions and time periods. This was in effect fraudulent.
On this basis, regardless of the rest is the crux.
And as an employer /line manager, with a staff member who failed to declare this, who will now be expecting to have her return to work manages differently, I'd be reviewing whether she's in breach of the contract if this delayed return is going to impact the organisation. And it calls her integrity into serious question!