A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
During these past months, waiting for Government guidance has been like waiting for birthday presents from an unpredictable grandparent; sometimes it’s on time and was “on list”, sometimes it’s late but still “on list” and then other times it’s on time but a bit of a disappointment, something of an anti-climax. So it was with the latest shielding guidance from the Government.
The press release of 22 June 2020 promised updated guidance to be published on 6 July; the guidance has been published but its paucity will disappoint many employers needing detailed and practical guidance.
What do we know…
- From 1 August 2020, the Government will “pause” shielding (subject to increased transmission of COVID-19 in the community) - this means that the 2.2 million people who are considered extremely clinically vulnerable and expressly asked to shield by NHS England and remain in their homes;
- This includes previously shielded adults being able to return to work and extremely clinically vulnerable children returning to school with the rest of their peers;
- Employees who have been shielding can return to work but only if their workplace is “COVID-secure”;
- Employers should work with shielding employees to help them return to work and ensure that they can work safely and socially distanced; and
- Shielding employees will no longer be entitled to Statutory Sick Pay (SSP) on account of their shielding although they may still be eligible for SSP due to their underlying condition that triggered them shielding.
What we don’t know…
- What exactly constitutes a “COVID-secure” workplace - the Government has provided guidance for various sectors (including health and social care) outlining general steps employers need to take and The Health and Safety Executive notes that “being COVID-secure means being adaptable to the current guidance and putting measures in place to control the risk of coronavirus to protect workers and others”. The guidance on its website provides practical steps but no specific actions or definitive definition. In the Government’s defence, different workplaces are going to require different measures, so making any definitive statements is impossible. The Government has published a “COVID-secure” poster that can be displayed in workplaces so an employer can demonstrate the steps it has taken. This poster suggests that once an employer has done the following, it is COVID-secure:
- carried out a risk assessment and shared the results;
- ensured cleaning, handwashing and hygiene procedures are in place;
- taken reasonable steps to help people work from home;
- maintained 2 metres social distancing between employees;
- where 2 metres is not possible has ensured that 1 metre or more is to be maintained; and
- taken “mitigating actions” to avoid transmission at this reduced distance;
- Whether a previously shielding employee should return to work if their employer cannot guarantee social distancing (either 1 or 2 metres) in most of their role (for example carers);
- Whether a returning employee should return to a role where they will need to wear PPE which would suggest that the workplace is not COVID-secure or whether the PPE would be seen as a mitigating action;
- What an employer should do if an employee does not feel safe enough to return to work on post 1 August 2020 and refuses to return; and
- Whether an employer is discriminating against clinically vulnerable employees if it fails to make the workplace “COVID-secure” and so the employee continues to be paid less than their full salary. The guidance notes that it is breaking the law to discriminate on the grounds a protected characteristic, but gives no more information as to what that discrimination might look like or whether it could be justified in certain circumstances.
What to do…
- With less than a month to go before shielding is lifted, employers should start the conversation with shielding employees (the Government reiterates that there should be dialogue between employer and employee) to find out what can be done to assist them returning to work. Clearly, if the employee can work from home and has been already doing so, this should continue. The steps to be taken mirror those taken for other employees returning to work i.e. risk assessment, employee involvement etc. and the Government has yet to provide more specific guidance for shielded employees. While this provides a good starting point, it is likely that employers will need to demonstrate that they have carried out a more rigorous risk assessment for returning employees who were shielding than for other employees.
- If, given the nature of the employee’s role, they cannot safely return to their workplace, look to see whether there are any alternative roles they could potentially fulfil for the short term. If there are such roles, we would advise that they are moved to these roles but on a month by month arrangement so that, once infection levels reduce or more safety measures can be put in place, the employee can resume their previous role. We would strongly advise that all of this is properly documented.
- Our umbrella body partner, UKHCA, is seeking clearer guidance from Health and Safety Executive on how the return to work should be managed for care workers currently furloughed because they have been shielding and/or pregnant.
- If an employee cannot return to their workplace an employer has several options;
- the shielding employee can be put (or remain) on furlough until 31 October 2020. This is provided they have completed a minimum three week period of furlough prior to 30 June;
- if signed off by the doctor, they can claim SSP on account of their underlying illness (and not on the basis of them being clinically extremely vulnerable) for as long as they are entitled and remain signed off;
- they can take holiday (although this is unlikely to give them much time); or
- the employer can decide to make some sort of discretionary payment i.e. under the contractual sick pay policy or match what would have been their furloughed pay. There is of course further the option of the employee taking unpaid leave, but our view is that this option is risky (see bullet point below).
- The Government has noted that it is aware of the discrimination angle associated with the treatment of shielding employees, unfortunately, has given no guidance as to how to deal with this risk. Employees who cannot return to work because of their disability (and it is highly likely that previously shielding employees will have a disability as defined by the Equality Act 2010) could allege that they have been treated less favourably because of their disability, for example, by virtue of the fact that they will be asked to remain on furlough and so be paid 80% of their salary or on SSP rates. We hope that should an employee bring such a claim, an employer’s defence that such payments were a proportionate means of meeting a legitimate aim (given it would be an indirect discrimination claim) would stand. This defence, however, would most likely fall away if the employer refused to pay the employee either SSP, furlough or any discretionary payment and made them take unpaid leave.
- We will inevitably get to 31 October 2020 when furlough will run out or SSP entitlement will end and, should the employee still not be able to return safely to work, the employer may have to consider requesting the employee to take unpaid leave or a dismissal on the grounds of capability. We would strongly recommend seeing legal advice before implementing either.
For more information
If you require any further information on this please contact Anna Dabek.
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