What employers need to know before shielders can return to work on 1 August

Over two million clinically extremely vulnerable people will no longer be advised to shield and will be able to return to work, if it is safe to do so and they cannot work from home.

The key things employers need to consider include:

• Those who are clinically extremely vulnerable and fit to work, and who cannot work from home will no longer be eligible for Statutory Sick Pay from 1 August;
• The Government updated its Access to Work scheme guidance on 12 May, so eligible disabled employees can claim financial support should they need to work from home;
• Anxiety could be an issue for some, and if severe enough could mean they’re eligible for sick pay or even amount to a disability;
• Someone who is not clinically vulnerable may still be disabled under the law, so caution should be taken in any disciplinary proceedings.

Read on to find out more about each of these issues.

What is the effect of this change?

Previously shielding employees may feel uncertain about returning to work so employers should ensure that robust measures are in place for their clinically extremely vulnerable staff to return to "COVID-19-secure" workplaces. Employees should agree with their employer a plan for returning, taking account of the employer's COVID-19 policies and any necessary adjustments needed.

Although the latest guidance envisages that some clinically vulnerable people may be required to attend work if they cannot work from home, employers should conduct a risk assessment, implement any requirements and continue to monitor the position.

Statutory sick pay will not be available from 1 August for clinically extremely vulnerable employees who are fit to work but cannot work from home or their normal workplace.

What reasonable adjustments need to be made for disabled employees?

Reasonable adjustments exist to assist a disabled employee to remain in or return to work.

Where a disabled employee refuses to attend work because of the perceived increased risk to them, medical advice should be sought to identify what can be reasonably done to get the employee working. If time is limited, employers may wish to allow them to remain away until the medical position is clarified.

On 12 May 2020, the government updated the Access to Work scheme guidance so that eligible disabled employees can claim financial support where they need to work from home as a result of the pandemic.

What about an employee who has severe anxiety and is afraid to attend work?

An employer should be sympathetic and try to resolve the concerns. This could include working flexibly, taking holiday or unpaid leave.

If using public transport to get to work is an issue consider offering car parking so that the employee can use their own vehicle; keep them on furlough if they are temporarily unable to work; or arrange for them to work different hours to avoid peak time travel.

The employee's anxiety may mean they are not fit to work and so entitled to SSP or contractual sick pay. Severe anxiety could amount to a disability. Medical advice should be sought as soon as possible.

What if employers dismiss or refuse to pay shielding employees who won’t return to work?

Remember that employees who aren’t classed as extremely clinically vulnerable might still be disabled under the Equality Act.

A dismissal or refusal to pay wages could amount to unfair dismissal and/or disability discrimination if the employee’s refusal to work was based on their reasonable belief there is a serious and imminent danger to their health.

Defending this type of discrimination and unfair dismissal claim is possible but difficult.

If you need any further guidance as your employees return to work from lockdown, please take a look at our Coronavirus Hub.