15 July 2020
Law at Work - July 2020 – 1 of 5 Insights
For those businesses asking employees to return to work in the workplace, one pressing issue is how to manage employees who are vulnerable, or perceive themselves to be vulnerable, and are anxious not to return. The starting point remains that if the job can be done from home then employees should work at home. However, if the work cannot be done from home and return to the workplace is required, businesses should take employees' concerns seriously and understand what justification the employees have not to return.
COVID-19 has dominated the headlines and our lives over recent months. As a result, employees are understandably anxious about the prospect of returning to the workplace. Employers should not discount these concerns without a proper investigation. The COVID-19 Risk Assessment is central to reassuring employees about the steps that the business has taken to ensure their safety and health at work. This document should be shared with employees. If employees have valid concerns about the processes and procedures that have been implemented the risk assessment should be updated in light of these concerns. It is vital that employees can and do feel confident that it is safe for them to return to the workplace.
Some employees will have concerns that cannot be met solely by making changes to the processes set out in the Risk Assessment and further steps may be needed. Employers should not overlook the fact that if they are unable to control the risk to employees' health and safety, the affected employees are protected from detriment and dismissal on grounds that they are unable to return to the workplace (with no qualifying period for such claims). Equally if a deduction is made from salary on the basis that the employee is refusing to attend work, the employer could potentially have a claim for non-payment of wages, depending on the facts.
For certain employees their justification for refusing to return may either be that they are shielding on grounds that they are extremely clinically vulnerable or clinically vulnerable, or that they are living with someone who is (extremely) clinically vulnerable. Although shielding comes to an end on 31 July (along with entitlement to SSP on this basis), these people still have vulnerabilities that need to be considered.
For those who are extremely clinically vulnerable, it is likely that they will meet the legal criteria to qualify for protection as a disabled person. If so, there is a duty to make reasonable adjustments to enable them to return to work (which may include finding them a suitable homeworking role).
For those who are clinically vulnerable, guidance suggests that employers should take advice from occupational health or the employee's GP before requiring them to return to work. Employers should also consider whether these employees could meet the criteria of a disabled person and if so consider making reasonable adjustments.
If an employee is refusing to return because he or she lives with someone who is vulnerable or extremely clinically vulnerable, the risk for employers is that the employee claims that returning to work poses a risk to their health and safety. Steps should be taken to discuss what can be done by the employer and employee to minimise any such risk.
Pregnant women are classified as clinically vulnerable. Therefore pregnant workers can be asked to return to work but employers must assess the specific risks for a pregnant employee of attending the workplace and do everything possible to prevent or remove those risks. If an employer cannot ensure the safety of the pregnant employee it needs to temporarily alter the pregnant employee's working conditions (including hours) or provide suitable alternative work on the same terms and conditions or as a last resort suspend the employee on full pay. This right to be suspended only applies to pregnant employees and does mean that pregnant employees qualify for better protection than others who are classified as clinically vulnerable.
When considering how to manage the rights of vulnerable employees who are uncomfortable to return to work, managers will need to undertake the difficult exercise of considering each employee's reasons for not being comfortable to work in the workplace, the role that the particular employee is employed to perform and what steps can be taken to mitigate and reduce the risks of them returning. What is clear is that a one size fits all approach will not be possible. This may result in employee relations issues and complaints brought by disgruntled employees who compare themselves to a colleague who has articulated the same concerns as them but who they perceive has been treated more favourably. An example of this would be two pregnant employees, one of whom is suspended on full pay during her pregnancy while her pregnant colleague continues to work but with adjustments.
Managers are advised to ensure that they keep detailed records of the steps that they take in respect of vulnerable employees so that their decision-making can be supported and evidenced in the event of a challenge.
by Vikki Wiberg