Following the second national lockdown across the country from 5 November, those who are identified as ‘clinically extremely vulnerable’ have received a letter from the NHS with new shielding measures. These shielding measures will apply for 4 weeks up to 2 December when the country will then look to lift the lockdown and return to a regional approach.
This update looks at the implications for employers who may have employees who now need to start shielding and what they will need to consider when these employees return to work.
The government guidance states that these individuals are strongly advised to work from home. If they cannot work from home, they should not be attending work for this period of restrictions.
Employers should consider allowing a shielding employee to work from home or take up an alternative role that is suitable and safe to do from home. If this is not possible, employers should consider allowing shielding employees to take leave if they need to shield.
Other options are to consider if vulnerable employees are eligible for furlough (Coronavirus Job Retention Scheme). The furlough scheme is being extended until 31 March and can be used for employees who are unable to attend work due to being identified as clinically vulnerable. If this is not possible employees may be eligible for Statutory Sick Pay.
Currently, those who have been advised to shield by the government should work at home if possible. If this is not possible, they should still not be attending their workplace. Once these restrictions are lifted, there are 7 key principles that the government has previously advised employers to follow when ensuring a COVID secure workplace:
It follows that, if shielding individuals are to return to work from 3 December with the same guidance that was released after the first lockdown, they will also no longer be eligible for statutory sick pay – unless they develop Coronavirus symptoms, or someone they know develops symptoms, and they are told to self-isolate and cannot work from home. This creates problems for employers as, quite reasonably, there is likely to be some anxiety and resistance from shielding employees about the prospect of having to return to work. Employers will need to be co-operative with these employees in particular in order to find an adequate solution.
Employees may be able to refuse on the grounds of whistle blowing. Remember, employees have statutory rights which protect them from any detriment or dismissal when they have decided not to return to work or to leave work in circumstances of danger where the employee reasonably believed this danger was serious or imminent. The employee’s belief must be both genuine and reasonable. If they cannot reasonably avert the danger, then the employee is entitled to get out of harm’s way. It will therefore be crucial for employers to show that there is no serious or imminent danger. Employers should try and ensure that workplaces are safe by following the above 7 principles.
Employees are also entitled to take appropriate steps to protect themselves or other persons from the serious or imminent danger. This may be relevant for employees who live with a family member who has been shielding and reasonably believe that any return to work would put that individual in danger.
The most important thing that employers should be doing is carrying out consultations with their employees, listening and talking to them about the work and how risks will be managed. This should involve reaching out to understand their concerns, communicating what steps have been taken to reduce risk and discussing if anything more can reasonably be done to address the concerns. This is particularly relevant for shielding employees who will arguably have greater concerns about any associated risks with returning to work.
Employers should also be actively demonstrating that they have properly assessed the risk and have taken appropriate steps to mitigate these risks by sharing their risk assessment through a notice on their website or displaying it clearly on notice boards within the workplace. Involving employees in discussions and demonstrating that risk assessments have been carried out will indicate that the employer is taking their employees’ health and safety seriously.
Employers should consider the guidance in the first instance and follow it properly. The extent to which the employer has complied with government guidance, and clearly communicated this to the individual, will certainly be relevant (although not necessarily determinative) of whether a fear of danger is deemed reasonable.
Once the clinically vulnerable are no longer being advised to shield, employers should give them “safest available on-site roles” if they cannot work from home. This could involve providing a special area within the workplace for that individual, which would allow for them to stay 2m away from others and, if this is not possible, employers need to carefully assess whether this is an acceptable level of risk. A risk assessment should be carried out for individuals in the vulnerable groups in relation to their travelling to and working at the particular workplace.
Referring back to an employee’s statutory protection, if a risk assessment is not carried out or if the risks cannot be averted or minimised, it would seem reasonable for the affected employee to believe that there was an ongoing and serious imminent danger and that they could not reasonably be expected to return to work or that they should limit their working activities in some ways.
Some vulnerable employees may also qualify as “disabled” under the Equality Act and employers should consider if there are any reasonable adjustments that can be made to help those individuals back to work. For example, a consideration of their work station requirements and equipment, or whether reduced hours to phase them back into work may assist.
Once this period of restrictions ends it is likely that shielding employees will no longer qualify for statutory sick pay as was the case when restrictions were lifted in August. Employers will need to consider alternatives as to how to manage employees who refuse to return to work. The following are some alternative measures that an employer could consider:
Some employers may have a company sick pay scheme which they could use to place clinically vulnerable employees on sick leave if they cannot return to work due to the risks associated with a return. You would likely need some medical evidence to confirm the inability to return.
Employers could explore the option of suspending such employees on full pay until it is safe for them to return to work. However, this may not be an acceptable commercial solution for some employers due to the costs of doing so, particularly as it may be difficult to assess when it would be safe for those individuals to return.
Employers could ask those employees to take annual leave or take unpaid leave until it is safe for them to return. However, it may be difficult to agree this with an employee who is unlikely to accept unpaid leave but, equally, they may feel this is the best option to protect themselves from the risks whilst keeping their job.
It could be possible for an employer to take disciplinary action against an employee who refuses to return to work on the basis that it is a breach of an employer’s reasonable instruction. However, employers need to tread very carefully if they decide to take this option. They must ensure that they have taken all appropriate steps to make their workplace COVID secure as employees are protected by the statutory rights mentioned above. This option may be more appropriate where employees who are not clinically vulnerable are refusing to return to work as theses employees are, arguably, less likely to prove a reasonable belief in an ongoing and serious imminent danger.
If you are an employer and would like any advice on the implications of shielding employees returning to work, please contact a member of the Employment team.
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This update was co-authored by Emma Ship, Trainee Solicitor and Claire Merritt, Partner.