Mrs P Devaney v Porthaven Care Homes No 2 Limited — 2020

Mrs P Devaney brought a disability discrimination claim alleging that Porthaven Care Homes No 2 Limited failed to make reasonable adjustments when she was shielding during the first phase of the Covid-19 pandemic. The respondent accepted that she was disabled by Crohn's disease. The tribunal found that she was clinically extremely vulnerable, not merely in an 'at risk' category, and that the NHS letters of 21 March 2020 and April 2020 instructed her to stay at home and avoid face-to-face contact.

The tribunal found that the respondent operated a PCP from 18 March 2020 under which care staff were paid full wages only if they attended work in person, and otherwise only the equivalent of statutory sick pay. Applying that policy to the claimant meant that she faced a choice between ignoring NHS shielding advice and attending work, or remaining at home and receiving only SSP. The tribunal found that the respondent knew or ought reasonably to have known that this placed her at a substantial disadvantage, particularly because she repeatedly provided the NHS letters explaining her position.

The tribunal rejected the respondent's approach of treating the claimant as comparable to other 'at risk' staff and rejected the suggestion that the NHS advice was only a suggestion or that the claimant was choosing not to attend work. It found that working from home was not possible, but that it would have been a reasonable adjustment to place the claimant on the Coronavirus Job Retention Scheme and pay her 80% of salary while shielding. The tribunal distinguished O'Hanlon v Commissioners for Revenue and Customs and treated the CJRS as a time-limited, effective adjustment in the unique circumstances of the pandemic.

The claim was therefore upheld. No final compensation figure was set in this judgment; instead, the tribunal invited the parties to try alternative dispute resolution and indicated that any compensation hearing would need to take account of a deduction for 84 hours of holiday paid at the claimant's full rate of £924 gross.