Managing Employees Who Are Unable to Work During National Lockdown Three
During National Lockdown Three the message from the Government is that where possible employees should work from home. But there will be some employees who will not be able to work from home and are unable to attend work either due to their own vulnerability, the vulnerability of a member of their household or due to childcare responsbilities. This post therefore considers managing employees who are unable to work during national lockdown three.
Updated guidance is released regularly and I will update this page as more details are announced.
This page was firstly published on 5 January 2021 and the last update was 5 January 2021.
Employees 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.
Employees who are shielding and can work from home should be allowed to do so.
The HMRC Guidance 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.” Therefore if an employee who is shielding is unable to work from home they should be furloughed.
Employees Who Are Vulnerable
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 be furloughed. 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.
Employees With Childcare Responsibilities
The Government announced that schools would close from 6 January 2021 to at least mid February 2021 (the February half term week). Nurseries, before and after school clubs and some holiday care providers are able to remain open.
Who Can Attend School or College?
Only children of key workers and vulnerable children and young people should attend school or college during National Lockdown Three. All other pupils and students will receive remote education.
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 attend work but you may need to work around the new child care arrangements by adopting a different working pattern.
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 attend work.
A reasonable approach to dealing with staff in this position would involve considering working from home or offering a period of furlough.
In order to decide whether working from home or furlough is the best approach you will need to start by understanding the extent of the issue, for instance:
- Is it everyday or is the other parent/step parent/partner covering part of the week?
- Is it all day or just at pick-up/drop-off times?
- Is it just that someone must be in the house to avoid the neighbours reporting them for child abandonment or that the employee will have to be hands-on from hour to hour?
If the employee’s job does not naturally lend itself to working from home you could look at other jobs to see if you can move work round so the employee can temporarily pick up some other duties which could be performed from home. This might mean offering them work which is less senior but could more easily be done compatibly with childcare.
Before confirming the exchange of duties you would have to be very careful that this was done by agreement with both parties, otherwise you would be straight into constructive dismissal territory. Any such swap would need to be carefully documented so that both employees knew it to be temporary only, and that they understood the position should it be necessary for example, to make that role redundant and who would be exposed – the employee whose job it normally was, or the one who was holding the parcel when the music stopped?
Separately, you would need to consider whether the role in question could be done not just from home, but from home for childcare purposes. Having very young children in the house requires the employee to be permanently on DefCon Four. Trying to focus adequately upon there work with one ear open for the noise of things breaking, hysterical sobbing or ominous silences may lead to sloppy work and missed deadlines for some employees. However, while you are entitled to ask the employee if they are confident that the work and childcare responsibilities are compatible, it is probably best not to make that decision for them. Instead you should offer the role on a trial basis terminable by either side but by reference to pre-agreed success criteria like any other flexible working application (which is essentially what this is).
Employees do not have a right to be furloughed and you may have business reasons for deciding not to furlough those unable to work due to childcare issues. However, you should be mindful that the school closures may impact a higher proportion of female staff and also those parents of children with additional needs so you should ensure there are good reasons if you do not agree to furlough employees with childcare difficulties. Also, where you decide to furlough some employees and not others, you should ensure that your selection is not based on discriminatory reasons.
The reasonable approach to dealing with staff who have childcare responsibilities and are unable to work from home would be to offer them a period of furlough. If the children are yound and need full time attention then a period of full furlough would be appropriate, however the parents may be able to split the work and both work on a flexible furlough arrangement.
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 attends work as normal 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.
If working from home isn’t an option offer the employee a period of furlough on either a full or flexible basis. Agreements to furlough must be made in advance of the commencement of the period of furlough this means a period of furlough that will start on 4 January 2021 would need to be formally agreed by 3 January 2021.
If the employee only needs a day or two to set up alternative arrangements then they may prefer to take annual leave.
The unconscious sympathies of the Employment Tribunal in these circumstances will almost inevitably be with the employee even at the best of times, which clearly these are not. Therefore it will pay you to be seen to treat a conflict between children and work as a joint problem to be addressed together, and not just an issue of the employee’s own making which they must sort out by themself, or else.
Black, Asian, and Minority Ethnicity (BAME) Employees
The DfE has 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, my recommendation would be to be especially sensitive to the needs and worries of BAME members of staff as there may be Equality Act considerations.
If you have any questions please call me on 0114 360 0626 or simply email me at email@example.com.
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