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Global HR Lawyers

Coronavirus – FAQs on staffing decisions when reopening workplaces

15 July 2021

Employers are facing many employment law issues as the guidance on working safely during the Covid-19 pandemic continues to evolve. These FAQs cover specific issues in relation to deciding which employees should stay at home and what happens if employees do not want to come to work.

See also our FAQs on managing a safe return to work which cover health and safety obligations, contact tracing, and adjusting hours and responsibilities. Our Workplace testing FAQs explain the issues to take on board if rolling out a workplace testing programme. In addition, our Coronavirus vaccination - FAQs for employers consider whether an employer can make vaccinations compulsory, alternatives to a mandatory requirement, dealing with vaccine objectors and data privacy concerns. Our FAQs on furloughing employees deal with all aspects of the government’s Coronavirus Job Retention Scheme.

The latest position is as follows:

  • On 22 February, the Prime Minister announced a new four step plan to ease England’s lockdown (with Devolved Administrations setting out separate plans for Scotland, Wales and Northern Ireland). This COVID-19 Response, the government’s “roadmap out of lockdown”, has lifted restrictions against a series of indicative dates.
  • New regulations will come into effect on 29 March to implement the roadmap. The government has published guidance on the reopening of businesses and venues, which summarises the position.
  • Central to the government’s strategy is the continuation of the successful rollout of the Covid-19 vaccination programme. The government had extended social distancing measures for an additional four weeks due to the effect of the Delta variant on infection rates. However, from 19 July, step 4 of the roadmap has been implemented. All legal restrictions relating to social distancing and the wearing of masks have been removed. The government advice that people should work from home if they can has also been removed.

Should every office-based employee in England work from home?

With effect from 19 July, the government is no longer instructing people to work from home if they can. The latest government guidance for workplaces - Working safely during coronavirus (COVID-19): guidance from Step 4 – confirms that employers can start to plan a return to workplaces, but during this period of high prevalence the government expects and recommends a gradual return over the summer.

This means it is no longer necessary for every office-based employee to work from home. However, it seems the government is not expecting or recommending that everyone returns to the office immediately. The guidance says that employers should discuss the timing and phasing of a return with their workers. Most employers are likely to adopt a cautious approach, at least initially, and we expect some will simply allow staff to continue to work from home for the time being if they wish to do so or until they have had an opportunity to be fully vaccinated. In any event, businesses will need time to decide upon their new workplace safety regime and get to grips with the updated guidance before they are ready to reopen fully. Covid-19 risk assessments while cases remain high may well find that it is not currently safe for all employees to return to the office at once. See also our FAQs on managing a safe return to work.

Employers should watch out for the additional advice being published for employees in parts of England where the Delta variant is spreading fastest. Employees in these areas are currently advised to continue working from home if they can, and to minimise travel in and out of affected areas.

Our staff need to attend the workplace – but what if they are worried about using public transport?

The government has published guidance on safe travel in England which advises people on using public transport during the coronavirus outbreak. This has not yet been updated for step 4. The advice guides public transport users to travel at off-peak times if they can, and to walk more of their journey where possible. It would be advisable for employers to accommodate any employee requests to amend their working time to facilitate compliance with this guidance.

What if the employee says that they cannot come to work, citing serious and imminent danger?

All employees have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where the employee has a reasonable belief that they or others are in “serious and imminent danger”. For the purposes of this statutory protection, the issue is whether the employee reasonably and genuinely believes they or others are in serious and imminent danger. It’s not relevant that you disagree about the danger – the question is whether the employee’s perspective is reasonable. This can include danger caused by the behaviour of work colleagues.

In situations where this protection applies, the employee would be entitled to stay at home on full pay for as long as they are refusing to return to the workplace because of serious and imminent danger. At least, that is the implication, since “detriment” would ordinarily cover loss of pay. There may be scope for arguing that a failure to pay an employee whose work was not performed is not always a detriment, but these arguments are untested.

This statutory provision was designed for extreme health and safety emergencies where an employee has no reasonable option but to take evasive action. It was not designed with Covid-19 in mind and it is difficult to predict how an Employment Tribunal (ET) will apply it to the current risks. The right was also designed for dangers in the workplace and it is unclear if it could be extended to dangers associated with the employee’s commute.

The ongoing uncertainty over the risks presented by Covid-19 combined with the constantly changing picture may mean that ETs regard an employee’s concerns as reasonable even if they have no particular vulnerability, the employer is complying with all guidance and no cases of Covid-19 have been found in the workplace. Alternatively, employees may need to show that they have a vulnerability and that there are significant health and safety lapses before it is reasonable for them to consider themselves in serious and imminent danger.

There have been some recent ET decisions which accept that the risks of COVID-19 may meet this test, particularly where the employer has failed to follow health and safety guidance. It is clear that at least some employees may be within their rights to stay at home on full pay in some circumstances. It is also clear that you can reduce the chances of this argument succeeding by being scrupulous in your approach to health and safety.

If an employee asserts that they are refusing to work for this reason, you need to make sure that you investigate their concerns and provide a reasoned and documented response. Remember your duty of care towards employees who are worried and ensure you are taking practical measures to support their mental health and wellbeing. Many employees will be anxious, and you should anticipate this.

For more practical guidance on how to mitigate the risks of this type of claim, see our table.

What if an employee is not ill, vulnerable, in any special category or citing any particularly serious dangers but is unwilling to come to work?

You could potentially take disciplinary action against such employees where you are confident that you are taking all reasonably practicable steps to control the risks. We would caution against doing this in most cases. Any dismissal could be regarded by an ET as unfair and disproportionate while cases remain high and many workers are not yet fully vaccinated, and any disciplinary action could result in constructive unfair dismissal claims.

The risk of a claim is higher for employees who are able to continue working from home, particularly while the government is recommending a gradual return to the workplace. The employer will need to show why it is now necessary for them to be in the workplace.

For employees who are unable to work from home, the best approach currently is likely to be to put them onto unpaid leave - employees who are not able, ready and willing to work are not entitled to pay – while continuing to take practical measures to support their mental health and wellbeing.

What if the employee is vulnerable and they are unhappy about coming to work?

The government did recognise two groups of vulnerable people – those who are clinically extremely vulnerable and those who are clinically vulnerable. However, all advice for those who are simply clinically vulnerable (covering people with certain respiratory and other underlying health conditions, and those over 70), has now been removed.

People with certain specific conditions (set out in public health guidance) have been identified as clinically “extremely vulnerable” to coronavirus. The clinically extremely vulnerable have previously been advised to shield. Shielding was paused in England from 1 April 2021, meaning the extremely clinically vulnerable are no longer advised not to attend work.

The latest 19 July guidance on protecting people who are clinically extremely vulnerable says that social distancing measures are ending in the workplace and it is no longer necessary to instruct employees to work from home. However, it also says that employers still have a legal responsibility to protect their employees and others from risks to their health and safety, and should be able to explain to clinically extremely vulnerable employees the measures they have in place. The guidance also recommends that the clinically extremely vulnerable should continue to consider the risks of close contact with others, and think carefully about taking precautions such as ensuing ventilation and considering whether those they are meeting have been vaccinated. Although this part of the advice relates to socialising, it is likely that clinically extremely vulnerable employees will want to ensure that they can follow these types of precautions in the workplace as well.

The guidance on working safely during coronavirus says that employers should give “extra consideration” to people at higher risk and to workers facing mental and physical health difficulties. Although the clinically extremely vulnerable are no longer advised to shield, the guidance says employers should continue to support these workers by discussing with them their individual needs and supporting them in taking any additional precautions advised by their clinicians. The guidance also says that employers should remain responsive to workers’ needs, particularly during this period when not every adult will have been offered 2 vaccine doses. Employers should also discuss with disabled workers what reasonable adjustments can be made to the workplace so they can work safely. This indicates that vulnerable employees will need to be given special consideration when returning to work, which may involve additional precautions and adjusting working arrangements.

If coming into work, previous government guidance said that vulnerable employees should be “offered the option of the safest available on-site roles”.I This is not in the latest guidance, but it would still be good practice as part of the employer’s general health and safety obligations (and potentially the duty to make reasonable adjustments) to prioritise the extremely clinically vulnerable and clinically vulnerable for the safest roles over anyone who is not vulnerable.

The situation faced by clinically vulnerable and extremely vulnerable employees will vary considerably from person to person and employers will not be able to adopt a single approach. Many vulnerable employees will be happy to come to work but some may face considerable personal risk and be very worried about returning to work. If a vulnerable employee resists a return to work on the basis of the risks to their health, take legal advice. If partial or full home working is not a solution then, depending on the circumstances, the safest and most cautious approach may involve furloughor taking unpaid leave, given the legal risks:

  • You owe a duty of care towards vulnerable employees. Failure to strictly enforce your precautions could result in a claim for negligence. Remember also that you will be vicariously liable for the negligence of your employees, some of whom may act in a thoughtless or irresponsible way.
  • Many vulnerable employees will also qualify as disabled for the purposes of the Equality Act. This means they have the right to reasonable adjustments, which could potentially include staying at home (but we don’t believe that this would extend to a right to stay at home on full pay if they cannot work from home).
  • It is also unlawful to operate provisions, criteria or practices which would put disabled employees at a disadvantage compared with non-disabled employees, unless this is justified. A policy of requiring vulnerable people to return to work could potentially be indirectly discriminatory and require justification. It may be hard to justify requiring an unwilling vulnerable employee to come back to work if, for example, they would rather be on unpaid leave, they face serious personal risks, and other employees could cover their role or you could recruit temporary cover at minimal extra cost.
  • The furlough scheme could be used as a temporary option for vulnerable employees who resist a return to work but cannot work from home, at least until the risks have decreased further (see below for more guidance on using the furlough scheme in these circumstances). You should, however, start discussions with employees about when they can reasonably be expected to return and ensure that you are taking practical measures to support their mental health and wellbeing.

What if the employee is clinically vulnerable or clinically extremely vulnerable and they want to come to work but we are too wary of the risks and we’d like them to remain at home?

If you have a clinically vulnerable, or extremely vulnerable, employee who wants to return to work but you would prefer them to remain at home, the legal position is different.

If they have agreed to be on furlough, then you can require them to keep to this agreement until the end of the furlough scheme. Once any agreed furlough period comes to an end, unless you agree something else, usually a salaried employee who is ready, willing and able to work would be entitled to full pay if you required them to stay at home. 

There is a potential exception if you have an agreed lay-off provision in the employment contract which entitles you to lay the employee off without pay (although these are quite rare), or if the employee is a casual worker who is not entitled to be provided with any work.

Now that the government guidance does not prohibit vulnerable employees from returning to work, there is a risk of a disability discrimination claim if you require a disabled employee to remain away from work. An employer would need to show objectively that the risks are too high to allow a return to the workplace. This may be particularly difficult to show if the employee is fully vaccinated.

Remember that you will need to continue to take steps to safeguard your employee’s mental health and wellbeing, which may be suffering if they want to return to work but are not allowed.

What if the employee lives with a vulnerable person?

You do not owe a duty of care to people who live with your employees. However, it is still possible that employees in this situation could make a legal claim.

In a recent decision (Gibson v Lothian Leisure) an ET found that an employee was unfairly dismissed after he raised concerns about coming to work because he lived with his vulnerable father and reasonably believed that his father would be in serious and imminent danger. The employer in this case had failed to take any Covid-secure measures or provide PPE. This argument is less likely to succeed if the employer has taken appropriate health and safety measures. It may also be more difficult to show there is serious danger in coming to work now that the government is no longer instructing employees to work from home. However, it is still possible that an employee who lives with a very vulnerable person may be able to argue they cannot come to work because of serious and imminent danger to that person.

In addition, those household members could well be disabled for the purposes of the Equality Act and there is a concept of associative discrimination which could potentially be relevant here. UK law currently only prohibits direct discrimination against an employee because of their association with a disabled person. This covers situations where, for example, an employer treats someone worse because they have a disabled child than they would have treated them if their child was not disabled. This kind of associative discrimination would not be relevant to Covid-19 situations.

However, there is an anomalous and surprising decision of the European Court of Justice which suggests that associates of a disabled person might be able to claim indirectdiscrimination if they are affected by a provision, criterion or practice that puts disabled people at a disadvantage. (The case concerns a claim for indirect race discrimination made by an individual who did not share the disadvantaged group’s race). This judgment has not yet been applied in the UK and we do not know what the UK courts would make of it given that the wording of the Equality Act does not appear to enable a claim to be formulated in this way.

Aside from employee welfare concerns, there may therefore be legal reasons why you might want to let some employees remain on furlough or unpaid leave or continue working from home if they are very worried about the risks to somebody they live with. In our view, however, they would not be entitled to paid leave in these circumstances.

What if the employee is pregnant?

There is specific advice from the government on coronavirus and pregnant employees.

Pregnant employees are treated differently than other vulnerable people and may have a greater claim to being allowed to remain at home on full pay, if they are not already on furlough or working from home. Pregnant women with significant heart disease are treated as clinically extremely vulnerable, but most pregnant women are not.

The government advice for pregnant employees contains recommendations for women less than 28 weeks pregnant, and those who are over 28 weeks pregnant and/or have underlying health conditions resulting in greater risk from coronavirus

Women less than 28 weeks pregnant with no underlying health conditions should:

  • only continue working if a risk assessment advises it is safe to do so;
  • ensure they are able to follow any active national guidance on social distancing; and
  • be supported by their employer with appropriate risk mitigation in line with recommendations to staff arising from workplace risk assessment..

Women over 28 weeks pregnant and/or with underlying health conditions should:

  • adhere to any active national guidance on social distancing; and
  • be considered for redeployment or opportunities to maximise homeworking wherever possible.

As the employer, you have to assess the specific risks to pregnant employees and, where these are identified, you must do all you can to prevent or remove them. It is a matter for your own risk assessment and whether you are confident that you can provide a safe workplace. The risks are greater for those over 28 weeks pregnant.

If you cannot ensure safe working conditions, you need to temporarily alter the pregnant employees’ working conditions or hours, provide suitable alternative work on the same terms and conditions or (as a last resort) suspend the employee on full pay. This right to be suspended on full pay does not apply to other vulnerable employees, and in practice means that pregnant employees are treated differently than other vulnerable people. It may also be possible to agree that the employee is placed on furlough instead (see our FAQs on furloughing employees for more detail).

What if the employee has anxiety or a similar condition which impacts on their ability to come to work?

Employees in this category could be allowed to continue working from home. If you require their return, they may not be fit and able to work and may be signed off sick as a result, which would entitle them to sick pay under your usual policies.

Even if they are not signed off sick, employees with some long-term mental health conditions may be disabled for the purposes of the Equality Act and it may be a reasonable adjustment to allow them to stay at home. They will not, however, be entitled to pay unless they are on sick leave or working from home.

What if employees are unable to come to work because they have no childcare?

The four main options where employees have no childcare available are:

  • Remain on furlough (where relevant).
  • Continue working from home.
  • Employees with over one year’s continuous service may apply for a period of unpaid parental leave if they are caring for a child under 18 (a maximum of four weeks’ parental leave per child).
  • Employees have a right to a reasonable amount of unpaid time off where it is necessary to deal with unexpected events involving their dependants. This would include a situation where their childminder is not working or their usual reliance on grandparent care has been disrupted. Under normal circumstances, the employee would be expected to put in place alternative care arrangements, rather than having a right to an extended period of time off to look after their children themselves. In the current circumstances, we expect ETs to be sympathetic to employees who are genuinely struggling to find suitable childcare in the short term. The prime minister has also stated that, if people do not have access to childcare, he regards that as an “obvious barrier to their ability to go back to work”.

What is the impact of the Covid-19 vaccination programme and workplace testing programmes on our staffing decisions?

The government is encouraging employers to roll out workplace lateral flow testing programmes in order to detect asymptomatic cases and control the spread of the virus. We explore the issues in our Workplace testing FAQs.

All adults are expected to receive the first vaccine dose by 31 July. The government’s review of the vaccine programme and other factors has resulted in all legal requirements for social distancing and the wearing of masks being removed from 19 July, along with advice that people should work from home if they can. This is not subject to employees having been vaccinated. However, employers who are opening up offices on a phased basis may still want to consider starting with those who have been fully vaccinated. We consider the issues around managing a return to the office based on who has been vaccinated in our Coronavirus vaccination - FAQs for employers.

We don’t need or can’t accommodate all our employees – how do we choose which employees should come to work?

We advise that you start by exploring who would be willing to come to work.

If too many employees volunteer, you may need to implement a rota system or make selections on an objective basis. If you are implementing a rota system, try to match employees with the same team each time they come into work and split employees into smaller, contained teams if possible. The guidance on working safely during coronavirus says that employers can consider reducing the numbers of people each person has contact with by “cohorting” (where each person works with only a few others), which could be factored into a rota system.

You also have the option of flexible furlough, where employees can return to work part-time and remain on furlough for the rest of the time (see our FAQs on furloughing employees for more information).

If not enough employees volunteer, you may need to have a mandatory system, but it will generally be safest if you can avoid calling on employees who have particular reasons for being unwilling to return (as described above) and allow them to work from home if possible or leave them on furlough or other types of leave if possible.

If employees already on furlough are unwilling to come back to work, can they stay on furlough?

We think so, yes. There is a concern that it might be seen as abusing the furlough scheme to keep an employee on furlough when you have work they could potentially do.

However, we think it is legitimate to keep vulnerable employees or carers on furlough for the time being, even if you might otherwise have asked them to return. The HMRC guidance on which employees you can put on furlough says that employers can furlough employees who are clinically extremely vulnerable even whilst shielding guidance is not in place, if they are following public health advice. Although current public health advice is that these employees can go to work, the latest guidance on protecting the clinically extremely vulnerable also says that they may be eligible for furlough even when shielding is paused, providing the employer agrees. For HMRC audit purposes, you should ask for information to verify that they are unable to work (even if this is more information than you might ordinarily ask for).

The position is less clear-cut for employees who are simply worried about the risks of working or commuting, although we think the risks are low if you only need some employees to come back and you are prioritising volunteers.

For more details, see our FAQs on furloughing employees.

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances © Lewis Silkin LLP 2021

 

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