How Do I Manage Staff Who Are Reluctant to Return to Work After Coronavirus Restrictions Are Eased?
When lockdown was announced, many workplaces were plunged into remote working overnight. However, remote working is not always possible, and the Government has issued new guidance on when staff should now return to work.
On Sunday night, the Prime Minister announced that staff who cannot work from home should be 'actively encouraged' to travel to work, where their workplace is allowed to be open. The announcement, followed by the publication of written guidance, has caused some concern. There is anxiety amongst the public about the circumstances under which they could be asked to return to work, and indeed whether it is safe to do so.
As an employer, it is important to respond fairly and reasonably to any concerns raised by staff about returning to work, taking into account the individual's unique circumstances.
Do 'Shielding' or Vulnerable Staff Have to Return to Work if their Workplace is Open?
Individuals with certain medical conditions have been identified by the Government as 'clinically extremely vulnerable' and have been advised to 'shield'. If an individual is shielding, they should stay at home, not leaving the house at all. This guidance is currently in place until at least the end of June.
The new Government guidance confirms that individuals who are shielding should continue to do so. If you employ any clinically extremely vulnerable staff, they should not return to the workplace yet.
In addition to the 'clinically extremely vulnerable' category, there is a second category of people who are 'clinically vulnerable'. This category includes people over 70, people with underlying health conditions such as diabetes and liver disease, and pregnant women. 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.
Crucially, the new Government guidance does not require this category of vulnerable people to remain away from work if remote working is not a possibility. Instead, employers should ensure the workplace is made as safe as possible, for example by facilitating social distancing, ensuring indoor spaces are well ventilated and providing good hand washing facilities. Even with these measures in place, vulnerable staff may be at greater risk if they return to the workplace. Employers should carry out risk assessments in relation to any vulnerable staff ahead of their return to work. 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 away from work.
It is important to recognise that coronavirus (COVID-19) is a new disease and there is much we have yet to learn about the nature of particular risk factors that may impact upon the severity of individual cases. There is some emerging data that suggests patients from black, Asian and ethnic minority backgrounds may suffer more severely from the disease. For now, whilst this is not identified in the Government's classification of vulnerable groups, it may lead to concerns being raised by staff who might feel they are at an increased risk, but lacking in protection. Care should be taken when dealing with such cases due to the potential for indirect discrimination.
Do Staff with Childcare Responsibilities Have to Return to Work?
According to the Government announcement, schools and nurseries will re-open to limited year groups from 1 June. This means that some families will now be in the position whereby they are being encouraged to return to work, but cannot practically do so without childcare in place. This scenario is not covered in the Government guidance, but the Prime Minister has since confirmed that employees who are struggling with childcare cannot be compelled to return to work, and employers should adopt a 'reasonable' approach to dealing with staff in this position.
How Should Employers Respond to Staff Who are Reluctant to Resume their Work?
Depending on the circumstances, it may be appropriate to place staff on furlough leave, sick leave or other unpaid leave. Alternatively, if the individual is not shielding, it may be possible to agree their return to work with an appropriate risk assessment in place. Employers are under an obligation to provide a safe working environment for all staff. If this cannot be guaranteed, it may be appropriate for staff to remain at home. Employers should bear in mind that dismissals for health and safety reasons, where the employee reasonably believes there to be serious and imminent danger in returning to work, are likely to be automatically unfair in employment law. Similarly, where an employee believes that they have suffered a detriment due to their refusal to return to work on health and safety grounds, the employer could find themselves liable for compensation.