Managing Employees Who Are Reluctant To Return To Work
For the foreseable future the message from the Government is that where possible employees should continue to work from home. Where working from home is not an option employees should return to work if it is safe to do so.
Coronavirus and Planning for a Return to Work discusses the measures you will need to consider to ensure your workplace is as safe as possible for your employees, customers and suppliers. Despite these measures there may be some employees who may not be able to safely return to work, either due to their own vulnerability, or that of a member of their household. Employees may also object to returning to work simply because, despite the changes you have introduced, they do not consider it safe. Whilst schools are only partially opening childcare responsbilities will continue to prevent many from returning to work.
Tribunals are expected to weigh in favour of employees who say they haven’t gone back to work because they feel unsafe during Covid-19.
In this post I consider situations which will need to be approached carefully.
Staff Who Are ‘Shielding’
Shielding is for people, including children, who are at very high risk of severe illness from coronavirus (COVID-19). The employee will have received notification from their GP advising they shield for 12 weeks.
The HMRC Guidance issued on 16 April states that “employees who are unable to work because they are shielding in line with public health guidance (or need to stay at home with someone who is shielding) can be furloughed.” Effectively this means that such employees can be furloughed if they are unable to work from home. This Government are advising individuals to continue shielding until at least 30 June 2020. Therefore, if you employ any clinically extremely vulnerable staff, they should not return to the workplace yet.
Employees who are shielding and can work from home should be allowed to do so. Where an employee who is shielding and had been placed on furlough they should continue to be furloughed.
The Government are reviewing there Shielding advice regularly and I will update this page if there is any change to the advice.
Update 23 June 2020
From 1 August 2020 shielding will be paused so those who have been shielding can follow the same rules as everybody else, even returning to work if their workplace is safe.
Food packages and Statutory Sick Pay will end at the end of July 2020.
If you have employees who have been shielding and are unable to work from home my recommendation would be to get in touch with them now to ask them how they feel about returning to work and what additional measures you might need to consider to enable them to feel confident to return to work. You may need to ask permission to contact their GP for advice on what measures would be appropriate.
There is a second category of individuals who have been identified as “clinically vulnerable”. This category includes:
- Individuals aged 70 and over (regardless of medical conditions).
- Women who are pregnant.
- Individuals aged under 70 with an underlying health condition such as chronic respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system.
Individuals who fall into this category are advised to remain at home as much as possible, and to take particular care to minimise contact with others outside their households.
Ideally they should work from home. Where working from home is not possible, you should ensure the workplace is made as safe as possible with rigorous social distancing and other measures put in place. Individual risk assessments will be needed and, depending on the circumstances, medical or occupational health advice might be necessary and ultimately the decision could be taken that the individual concerned should remain on furlough. You will also need to consider suspension on medical grounds for pregnant employees.
Even if employees do not have the conditions that have been specifically identified as making them vulnerable they may still have underlying health conditions that mean they are particularly concerned about the risks of the Coronavirus. Where employees have long term physical or mental health conditions, these may fall within the scope of the Equality Act and so you will have to consider whether any additional reasonable adjustments are needed to support them, and will need to ensure that any actions in relation to these members of staff are justified.
Employees Who Live with Someone Who Is Shielding or Vulnerable
There will also be employees who live with someone who is either shielding or vulnerable and are reluctant to return to work because they are concerned about the risk of contagion. The Government guidance is that these employees do not need to remain at home and can attend work, however robust social distancing measures will need to be put in place. Individuals may have protection under discrimination by association legislation and so concerns do need to be handled carefully.
The Government announced that schools could open on a phased basis from 1 June 2020, however some Headteachers and Local Authorities said they were unable to comply with the social distancing measures and therefore remained closed until September at the earliest. Nurseries, before and after school clubs and some holiday care providers have been able to open since 15 June, but it’s not clear how many have done so. From Saturday 4 July more businesses, including pubs, restaurants, cinemas and hairdressers, were given the green light to open and there are now a relatively small number of business who remain closed. Most employers are now therefore starting to unfurlough staff or transfer them to the flexible furlough scheme.
Many parents rely on the support of family members and friends to help with childcare outside school opening hours and during school holidays. But this is no longer straight forward! A single parent can form a ‘support bubble’ with another household, this means they can meet in each others home and don’t have to adhere to social distancing rules. So, if an employee is in a support bubble with a friend or family member who can look after their children, they should be able to return to work but you may need to work around the new child care arrangements by adopting a different working pattern.
From Saturday 4 July, people can meet indoors in family gatherings involving two households, but they are expected to socially distance from anyone who is not in their own household or bubble. That effectively means that other family members won’t be able to look after babies or young children, but probably can look after those who are old enough to do most things for themselves.
It’s therefore highly likely, that many of your employees who have childcare responsibilities may struggle to return to work until their usual childcare arrangements are in place.
The HMRC guidance clearly says that employees who are unable to work because they have caring responsibilities, resulting from Coronavirus e.g. they need to look after children because they are not in school, can be furloughed unless they can work from home. Therefore employees who are struggling with childcare cannot be compelled to return to work.
A reasonable approach to dealing with staff in this position would involve considering working from home or extending the period of furlough. When further restrictions are lifted and Grandparents or other family members or friends can help with childcare then you may consider approving a temporary period of flexible working so the employee can drop off and collect the child.
- If you haven’t already done so, start having conversations with your staff about returning to work. If they can’t return because of childcare (or have any other difficulties) the sooner you find out the better.
- Find out if a different (and possibly temporary) working arrangement will help them. Can you adjust their work hours to accommodate what childcare they do have available? Or, can they work from home?
- Don’t make assumptions about who will provide childcare in a family unit. Many families endeavour to share responsibilities between parents and may want to try and juggle this alongside work.
- Don’t just insist someone returns to work if you know they genuinely can’t because of the lack of childcare. If you do, it is likely to undermine the implied duty of trust and confidence between you and them and, if they have two years’ service, they’ll be able to resign and claim constructive unfair dismissal.
- From Wednesday 1 July, any parent who has already been furloughed for a three week period before the end of June, can work on a part time basis and be furloughed for their remaining hours under the new rules on flexible furlough. Bear in mind, that you’ll have to contribute to the costs of furlough from 1 August.
- If you’ve not already furloughed a member of staff, there are other options you can consider with them such as taking annual leave, unpaid parental leave, or an unpaid sabbatical.
- You may be able to dismiss any member of staff that can’t return to work within a reasonable time-frame but that would be a ‘last resort’ and you’d be expected to have explored all other options first and warned them that their job is at risk. We recommend that you take advice first to avoid potential unfair dismissal and possibly discrimination claims.
The guidance clearly says that employees who are unable to work because they have caring responsibilities, resulting from Coronavirus e.g. they need to look after children, partner or spouse because they are sick, can be furloughed unless they can work from home.
If a dependant such as a partner, child or relative in the same household gets coronavirus symptoms, they will need to follow self-isolation guidance and should receive Statutory Sick Pay (SSP) as a minimum for this time.
Black, Asian, and Minority Ethnicity (BAME) Employees
The DfE has just published Overview of scientific information on coronavirus (COVID-19). This mentions that there is evidence that the risk of death involving coronavirus among some ethnic groups is significantly higher. While the exact reasons for this are not currently known or understood, employers should be especially sensitive to the needs and worries of BAME members of staff and there may be Equality Act considerations.
Getting to Work and Public Transport
The Government advice continues to be to walk, cycle or drive to work and to avoid public transport at peak times.
Therefoer, where employees travel to work on public transport and have no alternatives available to them you may decide to provide flexible working for a period of time to allow them to avoid the busiest travelling times.
It may be helpful to gather information from staff about their personal circumstances in order that these can be taken into account and particular risks identified and managed.
Regardless of lengths you go to , some employees may still have concerns about returning to the workplace and you should be sensitive to this.
Disciplinary action and especially dismissal for unauthorised absence for refusal to return to work at the current time would almost certainly be unfair. It is important to remember that although public health advice may say that it is safe for employees to attend work, the law is based on the employee’s subjective perception of whether they thought that going to work posed a serious danger, and in this sense the law is often in favour of the furloughed employee.
Initially it may be possible to manage the work with those who are willing and able to return.
Remind employees who do not return to work that their situation will be kept under review as their preferences may not be able to be accommodated long term.
If you have any questions please call me on 0114 360 0626 or simply email me at email@example.com.
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