COVID-19 advice

The information in this blog is correct as at 3 July 2020. For the most up-to-date Employment Law and Health & Safety advice to support your organisation through the COVID-19 pandemic, visit our Coronavirus Advice Hub, which is updated daily and contains a variety of free guidance notes, letter templates, checklists, risk assessments and more.

You’re about to reopen your business and it’s finally time to bring your team back together. But who can you reasonably ask to return, and who might need to remain at home?

It’s important to understand the government’s stance on those who should and shouldn’t attend the workplace, as well as the potential legal implications and the options/alternatives available to you if staff can’t or won’t work.

In this article, we explain the current position on who should and shouldn’t be expected to return to work.

Employees with confirmed or suspected COVID-19

People with COVID-19 experience varying degrees of fever, fatigue and shortness of breath; however, even those who are relatively unaffected or asymptomatic can pass the virus to others, so it’s important that anyone who has tested positive for the virus or is showing symptoms does not enter the workplace under any circumstances.

If the employee has only mild symptoms and is able to work from home, this can be utilised to help maintain normal operations and will also mean that the employee continues to receive full pay as opposed to statutory sick pay (SSP) of £95.85 per week.

If the employee’s symptoms are more severe, or the nature of their role doesn’t allow them work from home, they would be entitled to SSP from day one of absence. Your usual sickness absence policy and procedure will apply, including company sick pay where relevant, and you will need to record the absence in the usual way. Under the Coronavirus Statutory Sick Pay Scheme, employers can now claim back any SSP paid to the employee in the first 14 days of absence through a new online portal.

Additional points to note:

  • Employees who have symptoms should be encouraged to take part in the government’s test and trace programme, which will involve them being tested for the virus and, if they test positive, the service will contact anyone with whom they have had close recent contact. These individuals, which may include coworkers, will also need to self-isolate.
  • If the symptomatic person has been at the workplace, you will need to take appropriate steps to control the risk of transmission, including disinfecting any surfaces that they have had significant contact with and completing an investigation to determine whether the incident needs to be reported under RIDDOR.

Employees who are classed as ‘clinically extremely vulnerable’ and have been advised by the NHS to shield

Clinically extremely vulnerable (‘shielding’) individuals are those who have specific medical conditions that put them at very high risk of getting infections. This includes – but is not limited to – those who have had an organ transplant, people undergoing chemotherapy or radiotherapy, or those with severe lung conditions. At present, the advice for these individuals remains that they should not enter the workplace.

Employees who fall into this group but who are asymptomatic can work from home where this is possible. Alternatively, as of 16 April, any employees who cannot attend work because they are shielding are entitled to receive SSP.

Currently, if they are unable to work from home and as an alternative to sick leave, it may be possible to place shielding employees on furlough. However, from 6 July, shielding advice for very high-risk grounds will be relaxed, and from 1 August people who are shielding will be able to attend work if they are unable to work from home, provided the workplace is COVID-secure and they remain a safe distance away from others.

Therefore, the big question is whether shielding employees can legitimately remain on furlough after this date if the reason why they cannot attend work – the fact that they are shielding – no longer exists.

Employees who are pregnant, over 70 or have an underlying health problem

Employees who fall into the clinically vulnerable (but not clinically extremely vulnerable) category should be allowed to work from home as a first option. If homeworking isn’t feasible, these individuals are now encouraged to return to work if they have been absent but should be offered the option of the safest available on-site roles where a distance of two metres (or one metre with risk mitigation where this is not possible) can be maintained between them and other people.

If these at-risk employees do not feel safe attending the workplace, while it is possible that they could be compelled to attend work, this is likely to be unreasonable and should be avoided if possible. Instead, consider allowing the employee to work elsewhere on the premises or avoid certain riskier duties (i.e. relieving them from customer-facing roles). Alternatively, it may be possible to place the employee on furlough leave without contravening the Treasury Direction, as this states that the scheme can be utilised for any employees who cannot work due to a coronavirus-related reason.

Theoretically, if these employees are reluctant to come into work, they could be placed on unpaid leave; however, that could well be discriminatory, so advice should be sought first. Be aware also that disciplining these more vulnerable employees, who may have justification for their refusal or concerns, may amount to discrimination, so some discretion should be shown.

Note also that pregnant women have additional protection where they cannot attend work due to health and safety concerns (for example, the work environment is unsafe due to COVID-19). They may therefore be entitled to full paid leave until it is safe to return or maternity leave commences. Putting pressure on pregnant employees to return to work could amount to discrimination, so seek advice if you find yourself in this scenario.

Employees who aren't sick, shielding or considered high risk but are worried about the risk of infection

For those who don’t fall into the above categories, the advice remains that they should continue to attend work. However, given the threat of COVID-19 is still very much present, it is quite likely that some employees may refuse to work or undertake certain duties due to safety concerns.

Employers are permitted to insist on attendance if concerns are unfounded; however, practically speaking, it may be difficult to get reluctant employees to attend work. If this results in unauthorised absence, the employee would likely not be entitled to pay and their refusal to work could potentially be dealt with as a disciplinary matter.

However, the Employment Rights Act 1996 prevents employees from being subjected to any detriment if, “in circumstances of danger which the employee reasonably believed to be serious and imminent”, they have left work, refused to work in certain areas, refused to undertake certain duties or refused to attend work at all. As such, any disciplinary action short of dismissal, such as withholding pay, could amount to a detriment where an employee has a reasonable belief that they are in “serious and imminent” danger, which may give rise to a claim. They may also be able to rely on protections under whistleblowing legislation.

For this reason, it is far better to work with the employee to try to put their mind at ease and, if this isn’t possible, find a mutually agreeable solution such as agreeing unpaid leave, redeploying them to another department or having them take annual leave. This will help to maintain employee relations, avoid the need for a lengthy formal procedure, and reduce legal risk.

In all cases, ensure that the appropriate risk assessments have been undertaken and shared with staff. Often, acknowledging their concerns and demonstrating the control measures in place to protect them can give employees the reassurance they need to return. However, if you have exhausted all possible avenues and formal action is the desired approach, always seek advice first.

Need more advice on your legal options?

Struggling to bring your team back together? Facing a return-to-work dilemma? Created by Employment Law specialists, our free Back to Business Hub contains simple guidance notes on common employment challenges, accompanied by 85+ template resources to support you through the various HR processes involved.

Visit the Hub now or, if you require advice on your particular situation, call 0345 226 8393 to enquire about our fixed-fee Employment Law and HR support.

Director of Legal Services

James Tamm

Whether you’re facing an immediate challenge or just want the reassurance of an expert second opinion, we’re here to offer clear, commercial advice so that you can focus on what you do best.

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