The Government has announced that from 6 July individuals deemed 'extremely clinically vulnerable' to coronavirus will no longer be advised to shield (and so will no longer need to avoid face-to-face contact or stay at home). From 1 August, those individuals will be advised that they can return to work (providing their employer has complied with the guidance on 'COVID-secure' workplaces) and will no longer be eligible for statutory sick pay. In line with current guidance, those who can work from home should continue to do so.
We anticipate that some staff in this category will be anxious about the prospect of returning to work, and employers will need to handle discussions with these staff carefully. We would suggest that employers take the following practical steps:
- Get in touch with staff who have been shielding and set a time for a discussion about a potential return to work;
- Make sure they have a copy of their workplace risk assessment and details of the measures they are taking to mitigate risks;
- Many staff in this category will be disabled for legal purposes and so the duty to make reasonable adjustments will apply. Employers will need to consider whether any aspect of the proposed working arrangements will place them at a disadvantage and what adjustments can be put in place to mitigate the disadvantage.
- When they meet with the employee, explore their views on returning to work with a view to agreeing a return to work plan. This should include discussion of any adjustments the employer proposes to put in place for them and any further adjustments they may request.
- If these staff are unwilling to return from 1 August for health reasons, employers will need to consider their options carefully, bearing in mind the risk of potential disability discrimination claims. If the employee has previously been furloughed for at least a 3 week period, employers may be able to use the furlough scheme to provide some financial support as they return to work on a phased basis. If not, employers may seek to agree a period of paid or unpaid leave with these staff, with a view to having a further discussion at a later date when (hopefully) the infection rate has continued to drop.
These discussions will need to be handled sensitively, balancing business needs against individual concerns and the potential risk of claims. There won't be a one-size-fits all approach.