This guide will help you plan your organisation’s next steps as lockdown measures ease or following a period of furlough
The UK government’s ‘shielding’ programme was introduced to protect extremely clinically vulnerable people from coming into contact with the coronavirus, by minimising all interaction between them and others. Government guidance (released 11 May) attaches an Annex B which summarises the clinically extremely vulnerable groups who had been advised to ‘shield’.(Note that clinically extremely vulnerable people with a great risk of severe illness who received shielding advice should not be confused with two other categories. There are clinically vulnerable and vulnerable people who employers should treat with extra caution but who were not officially part of the shielding programme.)
Changes in England
With the general easing of lockdown restrictions, the UK government recently set out changes to the guidance for those who are shielding in England. The guidance is changing as follows:
- From 6 July
People who are shielding can meet outdoors in groups of up to 6 people and create a ‘support bubble’ with one other household. They should continue to adopt strict social distancing, minimise contact with others outside their household or support bubble and stay at home where possible. Employers should continue to support shielding for those who are clinically extremely vulnerable, including offering home working if possible. If this is not feasible, then furlough pay or SSP (Statutory Sick Pay) may be available during shielding. For more information, see the government website.
- From 1 August
Those who have been shielding can return to the workplace, if they cannot work from home and as long as the workplace is COVID-secure. The updated Working safely during coronavirus guidance now includes guidance on protecting people who are at higher risk and states that these people should carry on working from home wherever possible. Employers should offer support to employees who have been shielding (as outlined below) and the CIPD continues to urge employers to consider three key tests before bringing their people back to the workplace: is it essential; is it sufficiently safe; and is it mutually agreed? More information is available in the Return to the workplace guide.
Changes to guidance set out by the Scottish government are similar where people who are shielding in Scotland are advised to remain shielding until at least 31 July.
In Northern Ireland official advice states that subject to the rate of community transmission continuing to be low, shielding can end from 31 July for people currently shielding there.
The Welsh government have stated that there are currently no changes to the advice for those who are shielding in Wales, where they will continue to shield until 16 August.
Given these changes employers should consider the following advice when preparing for the safe return of employees who have been shielding to the workplace, and plan how to support those who are not yet able to return.
For employees returning to the workplace
The physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace.Employers must make workplaces COVID-secure
When those who have been shielding return to the workplace from 1 August 2020 it will be for employers to show the workplace is a secure environment which is following the current social distancing guidance and physical adjustments to the workplace.Employers must carry out individual risk assessments
Employers will need to undertake individual risk assessments to support previously shielding staff to return. These should be undertaken well in advance. Matters to consider may involve adjusted duties or redeployment, provided staff agree.
Employers should speak to people individually and agree specific arrangements resulting from the risk assessments. Arrangements will depend upon individual circumstances. Specialist advice 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.
Acas (the Advisory, Conciliation and Arbitration Service) recommends that discussions with employees include the following:
- when staff might return to the workplace
- how staff will travel to and from work
- how health and safety is being reviewed and managed, including sharing the latest risk assessment
- any planned adjustments to the workplace, for example additional hand washing facilities, staggering start and finish times to avoid overcrowding or floor markings to help people keep 2 metres* apart
- if there might be a phased return of the workforce, for example some staff returning before others
- working from home arrangements
*From July 4 the advice in England continues to be that people from different households should stay at least two metres apart from each other. It is only where this is not possible that people should allow for a distance of one metre plus.
Acas has also 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.Extra protections under the Equality Act 2010
Many formerly shielding employees with underlying conditions may meet the definition of disability under the Equality Act 2010. This means employers must not treat these employees less favourably in any way. Employers should also discuss, and then make, reasonable adjustments. These could include 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.
For shielding 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.
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.
For employees not yet returning to the workplace
Employers may wish to allow employees who have been shielding to continue to work from home where possible (as is now outlined in the Working safely during coronavirus guidance), as the health and safety protections at work are harder to meet for those who are clinically extremely vulnerable.
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 or furlough.
Until August, those who are shielding (but otherwise able to work) could get SSP if employers chose not to furlough them and home working was not possible. If people are well and can continue to work remotely, they should be paid as normal and they are not entitled to SSP. If a regional lockdown occurs, it is not entirely clear what government help is available towards employee’s pay especially for staff who have not previously been furloughed.
From 1 August, employers can no longer claim SSP for staff just because they are shielding. SSP will still be available for the following people who:
- have coronavirus symptoms
- live with someone with coronavirus symptoms
- have been notified that they should self-isolate under the NHS test and trace system. This covers people who are not unwell but have been told to self-isolate because they have been in close contact with someone who has tested positive for COVID-19.
Employers can furlough staff, as long as they were previously furloughed, until the end of October. Furloughed but clinically highly vulnerable staff who had at least one period of furlough under the first phase of the scheme can remain on furlough, or be furloughed again and be paid under the job retention scheme. This could happen until any mechanisms making the workplace Covid secure are put in place.
If furlough or home working are not viable options, and the level of risk in the workplace cannot be reduced to an acceptable level for employees, employers may consider allowing annual leave or unpaid leave to be taken by agreement, until they feel the risk has reduced.
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 whilst arranging for the ongoing care of a family member.Redeployment
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 health care 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.
This responsibility for employee’s health and safety will be of central importance as shielding staff return to work from 1 August onwards. Employees who raise justified health and safety concerns may have extra protections from detriment or dismissal for a health and safety reason.
If an employee who was formerly shielding does not want to come into work 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. Acas states that, where possible, an employee who still has concerns about workplace risks should be allowed to work remotely or take time off as holiday or unpaid leave.
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.
Ultimately, 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 shielding staff will be anxious about returning to work. 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 workplace has been made as COVID-secure 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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