Following the Government’s announcement in May that the lockdown as a result of COVID-19 was to be lifted to allow those that could not work from home to get back to work, guidance has been produced to assist with that return, an
Managing the Return to the Workplace: High Risk Employees
Health & Safety considerations
As a result of the Covid-19 pandemic, some people have been classed as clinically extremely vulnerable people (high risk) and those people have been requested to take additional action to prevent themselves from coming into contact with the virus, including being strongly advised to stay at home as much as possible and to keep visits outside to a minimum – these people are being “shielded”.
As things stand however, from 1st August 2020 shielding is to be paused unless the transmission of the Covid-19 virus starts to rise. This means that employers may be able to welcome back to the workplace employees who were previously shielding.
So what do employers need to do to enable those high risk employees to come back to the workplace?
The government guidance is very much still that if you can work from home, then continue to do so, and this still applies across the board - not just to those who are, or have been, shielding.
As employers therefore you should ensure that your employees have all the necessary equipment to enable them to undertake their jobs from home and should take steps to ensure that you stay in contact with those home workers and monitor their well-being accordingly.
However, if those previously shielding and high risk employees cannot work from home, either as a result of the role that they undertake or their home personal circumstances means that they cannot work from home, then those employees can now return to the workplace, provided that the workplace is deemed to be “Covid-secure”.
In order to be “Covid-secure” it is of paramount importance that employers undertake a specific Covid-19 risk assessment for the workplace as a whole, and for those employees that are in the high risk category to ensure that if they do return to the workplace, they are able to work safely and that the risk to them as a result of the pandemic is reduced to the lowest level practicable.
The risk assessment should consider the nature, size and type of the business, how it is organised, managed and regulated, what the layout of the workplace is and what resources are available to your business alongside considering how the virus could be transmitted within the workplace with a view to each business deciding upon the further mitigating steps to protecting the individual employee.
Such steps for those employees could include changing the working hours or pattern of the employee, changing their physical workstation, and taking steps to reduce the risk of that employee coming into contact with other people / ensuring that they remain 2 metres away from other people by considering how employees arrive and leave the workplace, move around the workplace, use meeting room or common areas, manage customers, visitors and contractors, and deal with inbound and outbound goods.
Where social distancing is not possible because of the very nature of the work that the employee undertakes, or the layout of the workplace, other mitigating steps could include arranging for the employee to work side by side or facing away from colleagues, using dividing screens, increasing the frequency of handwashing and surface cleaning, using fixed teams or partnering and keeping the activity times as short as possible.
Having undertaken a risk assessment for those high risk employees and taking into account their individual circumstances, whatever the steps to be taken are, it is important that employers liaise with those employees to come to an agreement as to what steps are appropriate and acceptable to both parties.
Employers should consider whether there is an alternative role that that the high risk employee could undertake that could allow them to work from home. If not, employers should consider whether that employee can be provided with the safest available on-site role to enable them to still stay 2 metres away from others, and if none of the above are viable options - and that employee will have to spend time within 2 metres of others - employers should undertake a further risk assessment to decide in light of that employee’s specific vulnerability, whether or not this is an acceptable risk in the circumstances.
Having undertaken the recommended risk assessment, if that risk is not acceptable, employers should be considering whether that employee should be returning to the workplace at all.
Employers should be aware that employees returning to the workplace may well be anxious about doing so and the aim is therefore to ensure they feel safe in doing so.
It is vitally important, therefore, that a specific risk assessment for those high risk employees is undertaken, and that conversations are had with those employees with regards to the steps the business intends to take to minimise the risks for them and enable their safe return to the workplace.
As things stand (and despite the Prime Minister’s suggestion to the contrary last Friday), the government guidance remains that, if employees can work from home, they should continue to do so.
Clearly, operational issues and personal circumstances may make homeworking impossible for some. As we have explained above, the key to getting employees (including high risk employees) back into the workplace is to carry out a Covid-19 specific risk assessment, consult with staff about the risk assessment and put measures in place to mitigate the risks identified.
However, even with the best will in the world, employers may still face resistance from staff: some may still be concerned about returning; others may flatly refuse; some may be worried about the effect their return may have for the health and wellbeing of a member of their household.
High risk/clinically vulnerable employees may be especially nervous about returning to work. To date, special protections have been in place which mean they cannot be forced back to work and are eligible to receive Statutory Sick Pay (SSP) for as long as their shielding notification remains in place. However, changes to legislation leave such employees financially exposed, with very limited options available to them.
This is because, on 6 July, The Statutory Sick Pay (Coronavirus) (Suspension of Working Days and General Amendment (No2)) Regulations 2020, came into force. These regulations extend SSP entitlement to two further groups of people (set out below in bold). SSP, therefore, is now available to those:
- with Covid-19 symptoms;
- who live with someone who has covid-19 symptoms:
- who have been advised to shield;
- who are self-isolating because they are a “linked household” with someone who has Covid-19 symptoms (i.e. they are in the same social support bubble); or
- who are self-isolating because they have been notified by the track and trace service that they have had contact with a Covid-19 infected person.
However - and very significantly in terms of the most clinically vulnerable employees - the rules around shielding employees, has changed. The Regulations now include a provision which allows a shielding notification to be overridden by a notice to end shielding.
As explained above, the government has now confirmed that shielding notifications will end on 31 July. This mean that, from 1 August, shielded employees will no longer be entitled to SSP. Unless they can either work from home, or return to the workplace safely (i.e. a risk assessment has deemed the level of risk to be acceptable), they may fall through a loophole which provides no safe means by which they can earn a living but which disentitles them to statutory assistance. In these circumstances, re-furloughing a high risk employee may be a viable option (assuming the employer can absorb the additional costs that they will incur for doing so over the next three months) but only if that employee had already been furloughed for at least three weeks before 30 June. If they have not been furloughed, this option will not be available.
What this means in practice is that in re-opening workplaces it is likely that high risk employees may resist returning to work in the ways we have identified above. If employers are to meet their health and safety, and employment, obligations, they will need to react to such concerns sensitively, and on a case by case basis.
Employees who raise concerns about returning to work
As stated above, the starting point for employers is to ensure they have a Covid-secure workplace. If they do, this should address the majority of employees’ concerns.
However, where employees are reluctant to return, our advice is for employers to listen to those concerns and then engage with the employee to try to alleviate them. If there is a genuine health and safety risk to that individual (or to others associated with them), or a reasonable belief of one, then employers will need to be careful that they do not subject their employees to a detriment (i.e. adverse treatment) as a result. We discuss this in further detail below.
Ultimately, however, if the concerns cannot be alleviated, then the employee may simply refuse to return to work.
Employees who refuse to return to work
Again, the starting point should be that, if employees can work from home, then they should.
If they cannot work from home then the next step is for employers to check the public health guidance and discuss with the employee the reasons why they do not wish to return. These reasons may not be immediately apparent to the employer and taking a bullish approach (such as disciplining the employee for disobeying a reasonable management instructions and/or unauthorised absence) would be a bold and risky move.
The employee, for instance, may be living with a clinically vulnerable individual and not want to place them at risk by returning to the workplace. Alternatively, they may be in a high risk category themselves. If these sorts of scenarios apply, employers will need to be mindful of their obligations under discrimination legislation. Just because shielding notices are to be revoked does not mean that high risk employees are any less clinically vulnerable. They are highly likely to be classified as “disabled” for the purposes of the Equality Act 2010. This means that employers will need to be careful that they do not directly or indirectly discrimination against them and be mindful of their obligation to make reasonable adjustments. Furthermore, employees who live with someone who is disabled (or pregnant) may also have protection from discrimination by association with someone with a protected characteristic.
Accordingly, disciplining or dismissing employees in these circumstances may result in claims of constructive/automatic unfair dismissal.
Furthermore, the (rarely used) health and safety provisions in S.44 and S. 100 of the Employment Rights Act 1996 (ERA 1996) give employees additional protection. These provisions protect employees from detriment or dismissal for being absent from work in circumstances where they had a reasonable belief that they or someone else, is at serious or imminent risk of danger, and took steps to protect themselves (or someone else) from that danger.
“Danger”, in this context, is interpreted broadly and may well be deemed to include the dangers associated with Covid-19. “Reasonable belief” is a subjective test and based in the employees own perception of the risk.
Accordingly, each case will turn on its facts: what is reasonable for one employee may not be reasonable for another. This is why opening a dialogue with staff to understand their justifications for not returning, is imperative. Get it wrong and you could expose yourselves to automatic unfair dismissal and/or a detriment claims.
Family members who are high risk
Some staff may be reluctant to return because they have family members who are/have been shielding and are high risk.
Whilst the government guidance states that family members do not need to shield with the high risk individual, it does recommend that they are careful to support those who are shielding (e.g. by observing social distancing etc.).
Clearly, after 31 July when shielding notifications are revoked, it will be more difficult for employees to justify refusing to return. However, as stated above, high risk employees are still likely to be regarded as “disabled”. Forcing the employee’s return to work and/or disciplining them could give rise to an associative discrimination claims and/or claims under S.44 and S.100 ERA 1996.
Whether or not employers need to pay employees who refuse to come to work will depend, largely, on the reason for their refusal.
If the employee is self-isolating because they have symptoms of Covid-19 or someone in a linked household has symptoms, and/or they have been notified through test and trace that they need to self-isolate, they will be entitled to SSP (and/or occupational sick pay, if the employer offers it).
If the employee’s refusal is unreasonable then this can be treated as unauthorised absence - the employee is not “ready and willing to work” and so they have no right be paid.
Otherwise, if the employee refuses and/or the employer does not believe that the level of risk in having them return to the workplace is acceptable, there is no automatic entitlement to SSP. In these circumstances, the employee may be protected by other legislation (e.g. if they are pregnant, they cannot work from home and there is no safer, alternative role that can be offered to them, they will need to be suspended from work on full pay) but, if not, then the alternative is for them to take unpaid leave or some of their paid holiday entitlement, or (if they have already been furloughed) be re-furloughed.
If the last few months have taught us anything it is that Covid-19 and its effect on our social, domestic and working lives (as well as our understanding of employment law) is very much a moving target. We all need to be able to react quickly and efficiently to changing circumstances. Many employers now have the infrastructure in place to do so but, with the prospect of further lockdowns in the future and a second virus wave expected in the winter, flexibility must be a priority for all businesses. In short:
- Be prepared for further lockdowns and shielding notifications to be issued.
- Forward planning is essential.
- Make sure the most vulnerable have the ability to work from home.
- Put contingency and business continuity plans in place.
- Consider your cash flow position in the event a shut-downs are necessary (the furlough scheme is unlikely to be available beyond October)
- Seek legal advice at an early stage.
If you require any further guidance or advice in respect of considerations for or dealing with the return to the workplace in respect of vulnerable employees, or should you have any other health and safety queries, please do not hesitate to contact the team at Prettys.