This guide will help you plan your ongoing return to the workplace as lockdown restrictions ease
The UK government’s ‘shielding’ programme was introduced to protect clinically extremely vulnerable people (CEV) from coming into contact with COVID-19, by minimising all interaction between them and others.
The formal shielding programme for CEV people ended on 31 March 2021, as part of the roadmap for easing England out of lockdown. This meant that CEV people were no longer advised not to attend work and shielding was paused in England from that date. A summary of the position in other parts of the UK appears below.
Updated government guidance summarises the CEV groups who are at very high risk of severe illness from COVID-19. There are two ways a person can be identified as CEV:
- Having one or more of the conditions listed in the government guidance for example organ transplant recipients, those with specific cancers or adults with Down’s syndrome, or
- Those added to the shielded patients list because, based on a doctor’s clinical judgement, they are deemed at higher risk of serious illness.
Further groups were deemed vulnerable due to a combination of less serious conditions and risk factors.
As well as those who are CEV the government recognised clinically vulnerable and vulnerable people. All advice for those who were simply clinically vulnerable (mainly people with certain respiratory and other underlying health conditions, and those over 70) was removed. However employers should treat all of these categories of people with extra care.
Changes in England from 19 July 2021
England moved to stage 4 of the roadmap out of lockdown on 19 July 2021. In accordance with this, CEV people should follow the same guidance as the rest of the population.
The key changes are as follows:
- There are no limits on numbers of people or households you can meet with
- Social distancing ends (with a few exceptions, mostly related to crowded areas)
- The advice to work from home ends – though a gradual return to the workplace is recommended
- The legal requirement to wear face coverings on public transport and crowded areas will largely be lifted (with the exception of some transport operators and in crowded areas).
The latest guidance emphasises that employers still have a legal responsibility to protect their employees and others from risks to their health and safety. The guidance recommends that CEV people should continue to consider the risks of close contact with others in public and in the workplace.
The previous rules on working safely during coronavirus are replaced by six pieces of guidance for various sectors of the economy covering offices, restaurants, pubs, shops and other close contact services, including hairdressers and beauticians. Employers may need to use more than one of these guides. Safety guidance includes individual COVID-19 risk assessments, adequate ventilation and cleaning, turning away people with COVID-19 symptoms, use of the NHS COVID-19 app and communication and training. Employers should also continue to support vulnerable workers by discussing individual needs and supporting any additional precautions advised by their doctors.
Although CEV people are no longer advised to shield, the guidance on working safely suggests that many of the previous precautions should continue and that employers should give extra consideration to workers facing mental and physical health difficulties.
Despite the voluntary language used in the guidance there are numerous reminders of how employers' normal legal oblications include the health and safety risk of COVID-19.
Given employers’ pre-existing legal duties to care for employees, if they do not follow the guidance, they may be explosed to claims that they have not done all they could to mitigate the health and safety risk of COVID.
For further details of the post July 2021 guidance see our Return to workplace FAQs.
Scotland, Northern Ireland and Wales
Changes to guidance set out by the Scottish government are similar. All CEV people in Scotland will have received a letter from the Chief Medical Officer advising them of the updated guidance.
If there is a return to the higher levels, those who cannot work from home can use the Chief Medical Officer’s letter as a shielding notification (similar to a fit note) while the higher restrictions or lockdown is in place in their area. The notification can be shown to employers to confirm if the employee cannot go into the workplace in that level.
Both CEV and ‘vulnerable’ people remain advised to take extra precautions and CEV people should continue to work from home where possible. If home working is not possible, they can attend their workplace, provided the employer has taken the proper measures to ensure social distancing, and they can travel to work in a way which allows for social distancing. In addition, CEV or ‘vulnerable’ people should continue to be particularly careful and:
- limit household contacts and number of social interactions
- follow social distancing guidelines
- wash hands well and often, avoid touching their face (particularly after touching hard surfaces), use a face covering and encourage others to do so too.
The Welsh government’s advice on shielding ended from 1 April 2021, so people in the shielding group (CEV) in Wales since then have followed the same rules as the rest of the Welsh population.
All organisations and businesses must carry out COVID risk assessments.
Statutory Sick Pay
Since 1 April 2021, CEV people have no longer been eligible for Statutory Sick Pay (SSP) or Employment and Support Allowance (ESA) on the basis of being advised to shield. Obviously if they catch COVID-19, or have been told to isolate due to contact, the sick pay rules apply.
Managing employees who are back in the workplace
In England, from 19 July 2021 onwards, the government advice to work from home where possible was removed. Many vulnerable employees will be happy to come to work but some may remain worried about the risks. If a vulnerable employee is hesitant about returning, employers may need to take occupational health or legal advice and should at least be ready to facilitate employees who want to continue working from home and roll back any loosening of restrictions at short notice. If working from home is to continue, suitable IT and equipment should be provided.
For those CEV staff who are back in the workplace, employers must reduce risk in the workplace and carry out individual risk assessments addressing COVID-19 as well as other hazards. Matters to consider may involve adjusted duties or redeployment, provided staff agree (as outlined below). Employers should speak to people individually and agree specific arrangements resulting from the risk assessments taking into account the increased transmissibility of the new virus strains.
Employers should outline:
- any health and safety measures put in place to reduce the risk of COVID-19 spreading
- longer term plans and the timing of any phased return with the affected workers and also with employee representatives
- Aspects arising from workplace risk assessments (especially considering the vulnerable) and address measures for all workers coming into the place of work
Acas has made some practical suggestions for managing a safe return to the workplace, such as arranging for someone to work different hours temporarily to avoid peak time travel or offering extra car parking where possible so that people can avoid using public transport. Other measures such as cohorting and staggered start times can also help vulnerable employees avoid busy times and crowds on public transport.
Specialist advice concerning a particular employee may be helpful, for example from an occupational health service, a doctor’s advice on the underlying condition, employment assistance programmes or counselling. You can also find information on risk assessments on the HSE website.
Employers may need to consider alternative ways of working as part of the risk assessment for employees who raise underlying health concerns, or have vulnerable family members.
When considering changes to roles and working patterns, employers need to be flexible and work collaboratively with employees. The redeployment of an employee may be necessary, on a temporary or longer-term basis. For example, redeployment may be required for an extremely clinically vulnerable worker in the healthcare sector.
Employers should address the following points when redeploying staff:
- Any redeployment must be agreed between the employer and employee.
- Staff must have the appropriate skills and knowledge for the role into which they will be redeployed.
- If changes to the role are not covered by the existing contract of employment, they may need to be re-negotiated.
All details of the redeployment should be clearly confirmed in writing, including any adjustments to line managers, policies and procedures and agreed roles and responsibilities.
Extra protections under the Equality Act 2010
Many CEV people with underlying conditions may meet the definition of disability under the Equality Act 2010. For CEV employees with underlying conditions to meet the definition of disability under the Act, they must have a long-term physical or mental impairment which has a substantial and adverse effect on ability to carry out day-to-day activities. A long-term effect means something that lasts for at least a year. For example, an employee with severe asthma may be regarded as having a disability as severe asthma attacks can be life-threatening and be accompanied by long-term issues of feeling tired, stressed, anxious or depressed and lead to underperformance at work.
This means employers must not treat these employees less favourably in any way. Employers should also discuss, and then make, any reasonable adjustments to the workplace or working arrangements so that they can work safely.
The government advice given on 19 July 2021 mentions this confirming that vulnerable employees should be given special consideration when returning to work, on a full or hybrid basis which may involve additional precautions and adjusting working arrangements.
The adjustments could include potentially allowing homeworking or transferring to another role in a lower-risk area. A request for continued home working is likely to fall within the requests for flexible working legislation and count as a reasonable adjustment for those who qualify under the Equality Act disability provisions.
The duties under the Equality Act do not just relate to reasonable adjustments. Any provision, criteria or practice (PCP) which would put disabled employees at a disadvantage will be discriminatory unless the employer can justify it. A policy of requiring all vulnerable people to return to the workplace could in theory be indirect discrimination. However, an employer is likely to be able to justify this. For example, a right to stay at home on full pay if an employee cannot work from home is unlikely to be reasonable if employees were to request this. However, each scenario is dependent on the facts. For example, if during a period of high virus rates a CEV employee requests short term unpaid leave as they are worried about personal risks, the employer may struggle to justify saying no if other employees could cover the work or temporary cover is available at low cost.
Other complex discrimination-related issues can arise, as it is possible some staff members may be more at risk from the consequences of COVID-19, due to their race, age, or disability. However, the EHRC (Equality and Human Rights Commission) has emphasised the importance of not basing any ‘return to the workplace’ decisions on protected characteristics, including disability. Any incidence of this would be direct discrimination. An example of this would be employees over 60 not being informed that the physical workplace is reopening, as you do not want them to return because of the potential risk. The employer should consider less discriminatory ways of protecting older employees. For more information, see the EHRC COVID-19 guidance for employers.
Employers who want vulnerable staff to avoid returning to the workplace
Different legal issues arise if employers have vulnerable staff who want to return but the employer is wary of the risks and would prefer them to remain at home. A normal salaried employee who can work would be contractually entitled to full pay if the employer insisted they remain at home without working.
The government guidance in England has stated for some time that vulnerable employees can return to work. Preventing them would be disability discrimination. There may even be mental disability claims if employees are prevented from returning to the workplace. As the vaccination rollout continues, it is harder for an employer to show that the risks are too high to allow a return to the workplace.
Some employment contracts contain agreed lay-off provisions or casual work terms which may mean the employee is not entitled to be provided with any work.
Employees who are reluctant to return to the workplace
Even though restrictions are eased employees may refuse to come into work if they reasonably believe there is a serious and imminent danger or the workplace is not COVID-secure. If employers have carried out risk assessments and made the workplace as COVID-secure as possible, then anyone who still refuses to return to work may be unreasonable. In this situation, there are a variety of options to consider, including unpaid leave.
The legal risks include the discrimination law referred to above and the duty of care towards vulnerable employees, including breach of implied contractual duties and negligence. Employers are also vicariously liable if other employees are negligent due to their different attitude to COVID risks.
If partial or full home working is not a solution, then the safest and most cautious approach may involve annual leave or unpaid leave. Depending on regional virus rates, employers can have discussions about when staff can reasonably be expected to return combined with practical measures to support their mental health and wellbeing.
Employers should also consider that employees have a statutory right to unpaid emergency leave of a day or two. For example, carers may require this leave while arranging for the ongoing care of a family member.
If an employee who was formerly shielding does not want to come into work at all because of genuine fears relating to COVID-19, employers must take these concerns seriously. If an employer insists on ending homeworking with no good reason this may be a constructive unfair dismissal which could be automatically unfair, with no minimum qualifying period of employment being required to bring the claim.
Employees who raise justified health and safety concerns may have extra protections from detriment or dismissal for a health and safety reason. Reasonable fears about health and safety are also covered by Section 44 of the Employment Rights Act 1996. Employees with a reasonable belief of ‘serious or imminent danger’ to their health may be entitled to refuse to come to work, for example, if they believe the workplace is not COVID-19 secure.
Case law guidance is starting to emerge on automatically unfair dismissal cases where employers have failed to take precautions. CIPD members can read summaries of these cases on our dismisssal case law page.
Ultimately, as vaccination increases and restrictions lift, when all appropriate alternatives have been considered, if an employee unreasonably refuses to attend work and cannot work from home, employers may consider disciplinary action. The employer must consider the particular individual's circumstances and why they are refusing to attend.
It is inevitable that some CEV staff will be anxious about easing of restrictions. Discussions with staff will be of critical importance. Managers must speak to people individually and agree specific arrangements resulting from the risk assessments, depending upon individual circumstances.
Specialist advice may be helpful, for example from an occupational health service, doctor’s advice on an underlying condition, an employment assistance programme or counselling. Shielding staff may need time to adjust, and reassurance that the COVID risks in the workplace have been reduced as much as possible.
- Gov.uk: Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19
- Gov.uk: Working safely during coronavirus guidance
- Gov.scot: Guidance on shielding in Scotland
- Gov.wales: Guidance on shielding in Wales
- nidirect.gov: Guidance on shielding in Northern Ireland
- NHS inform: Coronavirus (COVID-19): Shielding
- Acas: Vulnerable people and those at high risk
- NHS digital: Coronavirus (COVID-19): Shielded patients list
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