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How Should HEIs Manage Staff Who Are Reluctant to Return to Work After Coronavirus Restrictions Are Eased?

on Friday, 15 May 2020.

When lockdown was announced, many HEIs were plunged overnight into remote working. However, remote working is not possible for all employees and the Government has now issued new guidance on the circumstances in which staff should return to work.

The Prime Minister announced on 10 May 2020 that staff who cannot work from home should be "actively encouraged" to go to work where their workplace is allowed to be open. The announcement, followed by the publication of written guidance, has caused some concern and anxiety amongst the public about the circumstances in which they could be asked to return to work and whether it is safe to do so.

As employers, it is important for HEIs to respond fairly and reasonably to any concerns raised by staff about returning to work, taking into account the individual's particular circumstances.

Do Staff Who Are 'Shielding' or 'Vulnerable' 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'. Individuals who are shielding should stay at home and not leave 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 not return to the workplace yet.

In addition, 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 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.

The new Government guidance does not require this category of 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
  • providing good hand washing facilities

Even with these measures in place, vulnerable staff may be at greater risk if they return to the workplace. You should carry out risk assessments ahead of their return to work and consider whether occupational health advice might be necessary. Ultimately you may determine that an individual concerned should remain away from work.

It is important to recognise that coronavirus 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 other ethnic minority backgrounds may suffer more severely from the disease. For now, whilst this is not borne out in the Government's classification of vulnerable groups, it may lead to concerns being raised by staff who feel they are at an increased risk but lack protection. Care should be taken when dealing with such cases due to the potential for indirect discrimination.

Coronavirus Legal Advice

Do Staff with Childcare Responsibilities Have to Return to Work?

According to the Government announcement, schools and nurseries may re-open to limited year groups from 1 June. This means that some families will be in a position where 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 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 sick leave or some kind of unpaid leave. Alternatively, for individuals who are 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.

HEIs should bear in mind that dismissals for health and safety reasons, where the employee reasonably believes there to be serious and imminent danger in them returning to work, are likely to be automatically unfair and there is no cap on the compensation that can be awarded by an Employment Tribunal.

For more information on this new guidance please contact Jane Byford in our Higher Education team on 07909 656764, or complete the form below.

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