COVID-19 advice

The information in this blog is correct as at 12 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.

Those most at risk from coronavirus will soon be able to return to the workplace under the government’s two-stage plan to put an end to shielding measures.

Having been shut indoors for over 100 days, as of Monday 6 July, 2.2 million people will finally be allowed to leave their homes, meet up to five friends while observing social distancing rules, and can form a ‘bubble’ with another household if they live alone.

From 1 August 2020, shielding will formally end in England and Northern Ireland, meaning those who have been instructed to avoid the workplace since March will be able to return, provided the workplace is “COVID-secure”. Elsewhere, subject to advice from the Chief Medical Officer, high-risk employees in Wales can potentially return to the workplace from 16 August, while Scotland has extended its advice to shield until at least 31 July, with no indication yet as to what will happen after this date.

What is shielding?

‘Shielding’ is a government-imposed measure to protect those considered to be at very high risk of severe illness from COVID-19, otherwise known as ‘clinically extremely vulnerable’. People that fall within this category should follow strict physical distancing measures to minimise interaction between themselves and other people – such as staying at home and avoiding unnecessary social interaction – and should take extra hygiene precautions to reduce the risk of infection. Those who have needed to shield will have received notification from the NHS back in March and April advising them to do so.

What does the end of shielding mean for employers?

From next month, employees who have been shielding will be permitted to re-enter the workplace. However, the advice remains to “work from home if you can, go to work if you must” – meaning homeworking should always be explored as a first option, especially with individuals who have an underlying health condition that makes them particularly vulnerable to COVID-19.

‘Elimination’ sits at the top of the ‘Hierarchy of Controls’, meaning ways to eliminate a hazard should be considered before other types of risk control measures such as changing the way people work and providing PPE. While the virus itself cannot be eliminated, homeworking is the only real way to remove the risk of employees contracting the virus at work.

With COVID-19 still presenting a significant threat to public health, the government has said it recognises employees may feel uncertain about returning to work. It is therefore calling on employers to ease the transition for their clinically extremely vulnerable employees by ensuring that robust measures are put in place to protect them.

Can I keep employees on furlough once shielding ends?

The big question, of course, is whether or not employees can legitimately remain on furlough if the reason why they cannot attend work – the fact that they are shielding – no longer exists.

In this scenario, we would recommend the following four-step approach:

1. Carry out a risk assessment

Carry out an individual risk assessment relating to the shielding employee, taking into account their specific circumstances and the associated workplace risks. If the risk assessment shows that the employee cannot safely return, and homeworking isn’t an option, it would likely be permissible for them to remain on furlough as an alternative

2. Attempt to address concerns

If the risk assessment indicates that it is safe for the employee to return to work (or safe to return once additional control measures have been implemented) but the employee refuses to do so, find out why. It may be that they are able to provide specific medical advice confirming that it is not safe for them to be at work. In those circumstances, it would be reasonable to keep the employee on furlough.

Download a template Vulnerable Persons Risk Assessment from our free Coronavirus Advice Hub

3. Contact HMRC

In the event of a dispute about returning to work, and in the absence of medical evidence, our advice would be to contact HMRC directly to check whether, in your particular circumstances, the employee would be eligible to stay on furlough.

4. Unpaid leave v disciplinary action

If the employee is not able to provide medical evidence, and in the absence of ‘permission’ from HMRC for the employee to remain on furlough, it will become a case of trying to force a return to work or allowing the employee to take unpaid leave.

Keep in mind that Section 44 of the Employment Rights Act 1996 prevents employers from disciplining or dismissing employees who, “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert… left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”. This doesn’t give employees a trump card to refuse to work if they are afraid of contracting or transmitting COVID-19 – especially if you have conducted a suitable and sufficient risk assessment and taken all reasonably practicable precautions to ensure their health and safety – however, given the potential for disability discrimination where these high-risk individuals are concerned, a period of unpaid leave would be preferable and a more proportionate response to taking disciplinary action.

What if I need the employee to return? Do I have to keep them on furlough if this is an option?

Of course, you may require all hands on deck to get your operations back up and running at near-normal levels, and you may feel it is imperative that the employee returns to work. Health and safety issues aside, refusing to leave employees on furlough may well constitute disability discrimination, and you will need to have objective justification for this sort of stance. Ask yourself: What is the legitimate aim here? Is forcing a return or taking someone off furlough a proportionate means of achieving that aim?

Don’t forget to weigh up the commercial risks, too. If a former shielding employee remains on furlough incorrectly, the worst case is that HMRC ask for the grant monies back in the unlikely event of an audit. However, stopping the pay of an employee refusing to return, disciplining or dismissing them may leave you exposed to a very costly Employment Tribunal claim. Commercially, therefore, leaving them on furlough makes much more sense.

What should I do now?

With just a few short weeks until shielding no longer applies, it is a good idea to consult with any shielding employees as soon as possible so that you can address any concerns and put plans in place to facilitate a confident and comfortable return to the workplace.

In all cases, working with employees rather than against them is likely to prove most effective, and will keep morale and productivity strong at a time when you need it most. 

Employees resistant to a return to work?

Given the potential complexity and value of any subsequent claim, it is always safest to seek advice before taking any action that the employee could link back to health and safety reasons. If you’re struggling to bring your team back together, our Employment Law specialists can help you identify the best course of action and achieve your desired outcome quickly and compliantly.

For clear, commercially-savvy advice on your particular situation, call 0345 226 8393 or request your free consultation using the button below.

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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