*PLEASE FOLLOW ANY GOVERNMENT GUIDANCE OR GUIDANCE SPECIFIC TO YOUR LOCAL AREA ON THE CORONAVIRUS (COVID-19)*
Covid-19 presents a higher risk to certain individuals and categories of clinically vulnerable people have been identified. These include the over 70s, those with certain underlying health conditions and those who are pregnant. A further group of people are identified as clinically extremely vulnerable (“CEV”) on account of certain existing health conditions. CEV people were officially notified of this by relevant health authorities and for some time, were advised to ‘shield’.
Shielding is a new concept and the legal rights of those who are or have been ‘shielding’ and those who care for or live with those shielding raise some tricky areas of employment and health and safety law which have not been tested in the courts and Tribunals.
Shielding guidance has now officially been paused in all four UK nations.
This article covers FAQs on coronavirus for clinically extremely vulnerable, carers and those who live with someone who is vulnerable to coronavirus. We raise some legal points below to discuss with your employer if they are refusing to support you if you are CEV, if you care for someone who is CEV and/or where your child is CEV.
You might also want to look at our other coronavirus pages:
- What are my rights?
- School closures and childcare
- Redundancy during coronavirus
- What financial support is there for working families?
- Rights for new and expecting parents
- Return to work and health and safety
Clinically Extremely Vulnerable and carers
I am Clinically Extremely Vulnerable. Do I need to shield?
Formal shielding has been paused in all four UK nations.
If you are CEV and cannot work from home and you are concerned about going to work see the section below on When shielding comes to an end, can I still stay off work?
I care for a Clinically Extremely Vulnerable person who is ‘shielding’. What does this mean for our family?
Shielding has now been paused in all four UK nations. For those who live with or care for someone who is CEV, the advice is that they should follow the same restrictions as the rest of the population.
My child is Clinically Extremely Vulnerable. Do I have to send them to school?
Pupils and students who were previously identified as clinically extremely vulnerable should attend their school or other educational setting and follow appropriate health and safety advice. Children who live in a household with someone who is clinically extremely vulnerable are not advised to shield and should attend school or college.
Rights to take leave or stay off work
Do I need to go to work if I am Clinically Extremely Vulnerable?
In England, shielding has ended. People who were previously identified as clinically extremely vulnerable are no longer advised to shield and should continue to follow the guidance for the general population. As of 20 January 2022 the Government guidance no longer states that you should generally work from home where possible. You should take advice from your health professional on whether additional precautions are right for you.
In Scotland, shielding has been paused and the advice now is that people in the highest risk group can go into work if they cannot work from home. Everyone on the highest risk list should consider their own individual circumstances when taking decisions about what’s right for them. They should keep following any previous advice from their clinicians.
In Northern Ireland, shielding has been paused. The advice now is the employer should give extra consideration to those people at higher risk. This includes vulnerable people, the clinically extremely vulnerable and pregnant workers.
If you are CEV and you are concerned about going to work see the section below on When shielding comes to an end, can I still stay off work?
Do I need to go to work if I care for someone who is Clinically Extremely Vulnerable?
In England, as of 20 January 2022 the Government guidance no longer states that you should generally work from home where possible. However, the pandemic has demonstrated that for many jobs it is possible to work efficiently from home. If you cannot work from home and you have to attend your workplace, your employer should be following the government health and safety guidance,. Your employer should be able to explain to you the measures they have put in place to keep you safe from COVID at work.
I am Clinically Extremely Vulnerable and my employer is asking me to come to work, can I take leave?
If you are Clinically Extremely Vulnerable (CEV) to coronavirus and have been shielding prior to the change in guidance, you may have a right to stay off work for health and safety reasons. Your employer has a duty to protect your health and safety.
Our page on health & safety and returning to work has information you can use if you do not feel safe returning to work. Do remember that your condition that led you to shield may also be a disability under the Equality Act. If so, your employer would also be under a duty to make reasonable adjustments.
If you are being forced back to work without proper safeguards in place, you should check if you have access to legal services through Trade Union membership or legal expenses insurance (often through your home contents insurance).
When shielding comes to an end, can I still stay off work?
Shielding has now been paused in all four UK nations. You may be able to stay off work for the following reasons:
- Health & safety: You have a right to stay off work if you have a reasonable belief that there is a serious or imminent risk to your health and safety. The risk does not have to be to you, it can also be to someone you live with or care for. See our return to work and health & safety page for more information.
- If you are looking after someone: you could take time off for dependants, parental leave and annual leave (see the question on taking time off work for caring responsibilities for an overview or our employment rights page for more information)
- If you are extremely vulnerable: check the ‘shielding and vulnerable people’ section on our return to work and health & safety page.
- Special leave/compassionate leave/carer’s leave: check your employment contract to see if your employer might offer a different kind of leave for carers or because of coronavirus
- Request to work from home: In England, as of 20 January 2022 the Government guidance no longer states that you should generally work from home where possible. However, the pandemic has demonstrated that for many jobs it is possible to work efficiently from home. You may be able to request to work from home longer term or change your responsibilities at work to make the workplace safer for you. See the section on requesting flexible working on our return to work and health & safety page.
Do I have a right to take time off work to look after someone who depends on me for their care?
If you look after someone whose care arrangements have fallen through because of coronavirus and there is nobody else to help for the time being, the first step would be to talk to your employer and explain your situation.
You may be able to work from home or reduce your hours. If you think you may need a medium to long-term adjustment to your working pattern, you could consider putting in a request for flexible working. We’ve created a template letter to request flexible working during coronavirus that you can use.
Time off for dependants, parental leave and other leave
If you need to take time off work to look after someone, you may be able to use:
- unpaid time off for dependants
- unpaid parental leave
- annual leave
- compassionate leave
- special leave that your employer has allowed
Read our question on taking time off work for someone who depends on you more information.
If you are suddenly left without income, there may be certain benefits that you could claim. Check our page on financial support for more information.
If you provide 35 hours or more per week of care to someone who is receiving Attendance Allowance, the middle or higher rate care component of DLA or the daily living component of PIP, you could also get Carer’s Allowance. This may apply even if you cannot normally get it, if you are currently not earning, or earning less than £132 a week (April 2022-23).
Carers UK has produced some useful information and FAQs for carers about coronavirus.
Scope has produced guidance on how to arrange food and essentials for the person you care for.
My employer has treated me unfairly because I’m Clinically Extremely Vulnerable. Do I have rights?
By law, employees and workers are protected against unfair treatment and dismissal if it’s because of a health condition that’s considered a disability under the Equality Act 2010. It does not matter how long they’ve worked for the employer.
This means an employer must not:
- unreasonably pressure someone to go to work
- unreasonably discipline someone for not going to work
- unfairly dismiss someone for not going to work
If you are classed as clinically extremely vulnerable you most likely have a disability for the purposes of the Equality Act and you may have additional protections under disability discrimination law. However, not all who are in the “clinically vulnerable” category will be disabled, some will have a disability but many won’t.
Tribunals will need to take into account the impact of Covid-19 when deciding whether someone who is clinically vulnerable qualifies as being disabled under the Equality Act 2010. Workers may be able to argue that a physical impairment that makes them vulnerable to Covid-19, now should be viewed as a substantially adverse effect on their ability to carry out normal day-to-day activities, because of the need to take steps to avoid infection.
This is always down to the individual circumstances and if you are considering bringing a claim, we recommend that you seek specific legal advice in order to fully assess whether you are eligible and which claims you may be able to bring and the procedure for bringing the claim. Your employer will need to consider your own varying individual circumstances and there is no definite answer.
My employer has said I can’t work from home because I care for someone who is disabled, is that discrimination?
It is true that, when you are working, your employer has the right to expect that you are devoting your attention to your work rather than to caring for someone.
However, this is an exceptional situation and many employers are exercising common sense and flexibility to allow employees to reduce or vary their working hours or pattern to enable them to work around caring needs. If you think this is an option in your role, then you should raise that with your employer. Explain how the pattern could work for you and them.
Direct disability discrimination by association
You have the right not to be treated less favourably because you are associated with someone who has a disability. If your employer is letting other people work from home, but they are not letting you work from home just because you care for someone with a disability, then this may be direct disability discrimination by association. This can be a difficult claim to prove.
Indirect disability discrimination by association
A recent case in the Employment Tribunal has confirmed that indirect disability discrimination by association can also occur. This would be where an employer imposes a policy or practice which disproportionately disadvantages workers who are associated with someone who has a disability. An example might be a policy of not allowing any working from home, which may disproportionately disadvantage carers for those with disabilities. Employers would be able to objectively justify the policy (and thus defeat the allegation of discrimination) if they had genuine business reasons for implementing the policy.
This is because indirect discrimination can be justified, whereas direct discrimination cannot. See our page on flexible working and the law for more information.
Please note that this is not settled law, because there has only been one case so far on this topic in the Employment Tribunal. It is possible that the case may be overturned in future by more senior courts, but for the moment it is still a consideration for employers, and grounds for a potential discrimination claim.
Indirect sex discrimination
If you are a woman, you can also argue that your employer not letting you work from home is indirect sex discrimination. It is still the case that women tend to shoulder more childcare and caring responsibilities than men. So if employers are inflexible with caring commitments, it is likely to have a disproportionate impact on women and could therefore be indirect sex discrimination. But unlike direct disability discrimination by association, an employer can, in theory, justify indirect discrimination if there is a genuine business need for their actions. This is because indirect discrimination can be justified, whereas direct discrimination cannot. See our page on flexible working and the law for more information.
What benefits can I claim if I’m off work to care for someone?
We have a separate webpage on financial support that is available if your income has gone down because of covid-19.
If you provide 35 hours or more of care per week to someone who is claiming PIP daily living component, DLA middle or higher rate care component, or Attendance Allowance, you may be able to get Carer’s Allowance. Claiming Carer’s Allowance can sometimes affect the benefits of the person you are caring for, so you are advised to seek benefits advice before applying.
If you are already claiming benefits (in particular Universal Credit, Working Tax Credit, Child Tax Credit, Income Support, Housing Benefit, income-based Employment and Support Allowance and income-based Jobseekers Allowance), your award for these benefits may increase while your income is lower if you are off work. However, you will have to ask for this to be done, and it is not straightforward, particularly in the case of tax credits (where you may risk being overpaid).
If you are not already claiming any other benefits, you may be able to claim Universal Credit if you are on unpaid leave or only receiving Statutory Sick Pay. Beware that making a claim for Universal Credit will replace any existing claims you have for working tax credit, child tax credit, housing benefit, income support, income-based employment and support allowance and income-based jobseeker’s allowance. So if you are already claiming any of these benefits, you should seek advice from a benefits expert before deciding to claim Universal Credit instead.
For more information on other benefits that might be available to you, have a look at our financial support page.
To check your eligibility for benefits, use this online benefits calculator on the Entitled To website.
Where can I go for more help?
We have created a number of articles on topics relating to coronavirus. These are linked at the very top of this page.
Links to further resources:
- Contact’s coronavirus page, which includes useful links tips on looking after yourself and educational and physiotherapy resources for disabled young people
- Scope’s coronavirus information, which includes, among other things, information on how to arrange food and essentials during coronavirus
- Carers UK’s help and advice section for coronavirus, which includes a large FAQ section and measures you can take to keep your loved ones safe
- The government guidance on schools and coronavirus for parents (England only)
- NHS Volunteer Responders: If you are caring for someone vulnerable, you can ask a volunteer to go shopping for them or collect their prescription. The person you are caring for can also talk to a volunteer on the phone if they are feeling lonely. You can also make a referral for yourself if this support helps you to continue in your caring role. Check how to get help from an NHS volunteer on the NHS Volunteer Responders website, or call them on 0808 1963646.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.