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Vulnerable care home worker wins claim after being forced to work through pandemic

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Mrs P Devaney v Porthaven Care Homes No 2 Limited a clinically extremely vulnerable care worker who was forced into work during the pandemic against NHS advice has won a claim for failure to make reasonable adjustments.

The remote south London tribunal heard that Ms Devaney’s employer, Porthaven Care Homes-owned Lavender Oaks Care Home in Carshalton, failed to make reasonable adjustments and either “deliberately or through an oversight” failed to acknowledge how vulnerable she was and made her choose between the risk of catching Covid or only receiving statutory sick pay (SSP) during the pandemic.

The tribunal heard that on 21 March 2020, Devaney was issued a letter from the NHS advising her that she was clinically extremely vulnerable because of her Crohn’s disease, which instructed her to not leave the house and avoid all face-to-face contact for a minimum of 12 weeks.

Devaney told the tribunal she took the advice of the letter and was absent from work from 23 March until 31 July, with her first shift back to work commencing on 3 August, as she had another letter advising her shielding period had been extended, which lasted for 19 weeks in total.

Devaney also made a request to her employer on 26 March 2020 to apply to be furloughed under the coronavirus job retention scheme (CJRS) and attached the letter she received from the NHS. The care home said that Devaney was a key worker and the care home was still operational, so furlough didn’t apply.

Employment Judge Barker said that Porthaven Care Homes either “deliberately or through an oversight failed to acknowledge the difference between workers who were CEV [clinically extremely vulnerable] and those who were merely vulnerable”. He added that, as a care provider, the firm could have reasonably expected to know the difference. “They ought to have known that she was being faced with a choice as a result of their policy of either to ignore the NHS advice and risk the consequences for her of catching Covid, or to be financially disadvantaged by remaining at home.”

A remedy hearing is to be scheduled to determine Devaney’s compensation.

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