Shielding employees return to work?

Shielding | Coronavirus

The Government have updated their advice to those who are shielding due to Covid-19. Those who have been shielding are classed as extremely vulnerable due to having very serious health conditions. This remains the case and so they will remain vulnerable to the virus and should continue to take precautions and be extra vigilant than those who are not.

Shielding paused from August 1st

As a result of Covid-19 infection rates significantly decreasing it means that from 1 August shielding will be paused and those who have been shielding can return to the workplace but only if the workplace is covid-19 secure. This is critical because whilst the infection levels are lower; the medical position on how it is transmitted remains the same. It has also been confirmed that the Government remove an employer’s eligibility to claim statutory sick pay.

There are over 2 million people shielding, and whilst we do not know exactly how many are in employment, as things stand, we will see thousands of people return to work in August. No doubt, that for those shielding as well as their employers, they will be apprehensive in returning and so communication is going to be key. Communicating early and openly will gain employee support to any measures you bring in and will help you to ultimately achieve a safe return to work.

Risk assessment process

The priority in returning will be the risk assessment process as this is key to identifying Covid-19 risks and identifying measures needed to reduce or remove those risks. This must happen before a return to work can occur. Employers will need to demonstrate that their workplace is safe and show that they are following Government advice on social distancing and make appropriate physical adaptations to the workplace, role, or hours of work.

We should bear in mind that the Government still encourages working from home; and so, for those shielding, this is going to be the best option for returning. However, not all roles can operate from home, and in this case, it is about finding workable solutions that will enable the safe return in line with Government advice. For those who are extremely vulnerable and have been shielding, there will be more of a requirement for employers to make adaptations, especially as their condition is likely to be covered by the Equality Act, which places legal requirement on employers to make reasonable adjustments.

Health and safety and employment legislation

Employers need to be mindful that employees have protection under health and safety and employment legislation and so should an employee refuse to return, employers must be careful to not compel anybody to return. Refusing to come to work when they hold a reasonable belief that by returning poses a serious an imminent threat to their health, could give rise to a successful claim for automatic unfair dismissal connected to health and safety.

Protected disclosures or whistleblowing

Employers must also be mindful of an employee’s right to make protected disclosures, also known as whistleblowing. During Covid-19, we may see an increase in complaints raised by employees in how they feel their employer may not be taking the necessary precautions. Under the Employment Rights Act, employees are protected from dismissal, selection for redundancy or being made subject to a detriment in connection to having made a protected disclosure.

In the event of an employee refusing to return to work, or in the event as an employer you are unable to make the appropriate adaptations to make the workplace covid safe, then you may be eligible for the Government’s coronavirus job retention scheme enabling you to furlough them until you can make the workplace covid safe.

Where furlough is not available, and the employee is refusing yet you believe the workplace to be safe; allowing a reasonable period of leave would be seen as a middle ground and a reasonable approach. Where this leave is paid or not is currently under debate amongst solicitors and we will not know the definitive position until it gets tested in court.

Our advice to employers is to engage with your employees early, seek their input and thoughts around how their health can be protected in the workplace, and explore different ways in which either the role, or the hours are operated to ensure it can be achieved whilst following the Government advice. Explain your approach to the risk assessment process, share your findings, and reassure them that your priority is their safety.

Further information

For more articles relating to the effects of the current pandemic visit the HR Solutions’ dedicated page ‘Coronavirus Advice and Guidance for Employers’.

HR Solutions are here to provide you with support and advice on any employment related issues; to find out more call us on 0844 324 5840 or contact us online.

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