Can shielding employees return to work after 1 August?

From 1 August 2020, individuals who are at high risk from coronavirus will no longer be advised to shield.

The government’s guidance states that these individuals may still be at risk of severe illness if they catch coronavirus and therefore should stay at home as much as they can and should continue to adhere to strict social distancing measures when going out.

What does this mean for employers?

The guidance states that employees can go to work as long as the workplace is ‘COVID-secure’. This means that employers must carry out a risk assessment, identifying any potential changes to the workplace to reduce the risk of COVID-19 i.e. PPE, social distancing measures, enhanced cleaning and hygiene practices.

Employers will need to carry out enhanced risk assessments for those who have being shielding.

The message is clear that where possible, employees who are most vulnerable should continue to work from home if they can.

What should employers do?

It is good news for employers who need their employees back at work. However, it is likely that employees who have been shielding will feel anxious about returning to the workplace. Employers should therefore assist and support these employees to transition back to work.

We recommend that employers engage in conversations with employees who have been shielding to reassure them of measures the employer is taking to ensure safety in the workplace and also to deal with any concerns which the employees may have regarding their return. Where possible, employers should continue to allow employees who have been shielding to work from home.

What if an employee cannot work from home but does not want to return to the workplace?

From 1 August, employees who have been shielding will no longer be eligible for Statutory Sick Pay (“SSP”) unless they are ill or self-isolating. If an employee refuses to attend work and is unable to work from home, the options are as follows:-

1. The employee could be placed on furlough under the Coronavirus Job Retention Scheme provided that they have been placed on furlough previously (i.e. before 30 June 2020);
2. Consult with the employee regarding adjustments to their role – perhaps they would be agreeable to return to a slightly different role or hours on a temporary or permanent basis (this will amount to a change in the contractual terms so the employees agreement must be sought);
3. Consider another type of leave i.e. sick leave, holiday, or unpaid leave; or
4. If an employee refuses to attend work without a valid reason, this could amount to unauthorised absence and result in
   disciplinary action. The employee will not be entitled to be paid if he/she does not attend work and there is not a valid reason for the refusal. We would suggest that unpaid leave or disciplinary action should be a last resort and only likely to be necessary in extreme cases.

Employees who have been shielding are likely to have underlying health conditions which could amount to a disability and may therefore be protected from unlawful discrimination under the Equality Act 2010. Employers must therefore take care when
dealing with these employees. Disabled employees are protected from less favourable treatment as a result of their impairment or something arising from their impairment. These employees will also be entitled to reasonable adjustments i.e. changes to terms so as not to put them at a disadvantage.

Please click here to view the government’s guidance on the changes from 1 August.

If you would like any advice regarding employees who are returning from shielding, please contact our employment partner, Kate Brooks at kate.brooks@ellisjones.co.uk or on 01202 057754.