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14th July 2020

Changes to “shielding” – the implications for employers

14th July 2020

Changes to “shielding” – the implications for employers

Claire Merritt

Posted: 14th July 2020

T: 023 8048 2112

E: Email Me

In the latest round of government announcements which eased more lockdown restrictions, it was confirmed that the millions of people who have been “shielding”, due to their clinically vulnerable status, would no longer have to do so from 1st August.

Shielding – What does this mean for employers?

This update looks at the implications for employers who may have employees who were shielding and what they need to consider when these employees return to work.

What does this mean for employees who had previously been shielding?

The government guidance states that these individuals should return to work if they cannot do so from home provided that their workplace is “COVID Secure”. There is more detailed guidance for different sectors as to how employers can make their workplace COVID secure on the government website.

Shielding – 5 key principles employers should follow

There are 5 key principles that the government has advised employers to follow when ensuring a COVID secure workplace:

  • Work from home, if you can – this has been the principle since the lockdown started and still applies but if you cannot work from home you should go to work.
  • Carry out a COVID-19 risk assessment, in consultation with workers or trade unions.
  • Maintain 2 metres social distancing, wherever possible.
  • Where people cannot be 2 metres apart, manage transmission risk e.g. barriers in shared spaces, shift patterns and ensuring colleagues are facing away from each other.
  • Reinforcing cleaning processes e.g. providing handwashing facilities or hand sanitisers at entry and exit points.

It follows that, if shielding individuals are to return to work from 1 August, 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.

Can employees refuse to return to work?

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.

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.

What should employers be doing to ensure safety?

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.

Although not legislation, 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.

Are they any specific rules for the clinically vulnerable employees?

The clinically vulnerable are still defined on the government’s website. In relation to the clinically vulnerable, there is government guidance which suggests that 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.

Are there any other solutions?

As shielding employees can no longer qualify for statutory sick pay, 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:

  • Put them on sick leave

Some employers may have a company sick pay scheme which they could use to place clinically vulnerable employees on sick leave if 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.

  • Suspending them on full pay

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.

  • Allowing them to take annual or unpaid leave

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.

  • Disciplinary action

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 Fred Chandler, Trainee Solicitor and Claire Merritt, Partner.

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Claire Merritt

Posted: 14th July 2020

T: 023 8048 2112

E: Email Me