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?
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:
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.