Coronavirus: managing shielding UK employees' return to work

Out-Law Guide | 25 Aug 2020 | 12:05 pm | 5 min. read

Managing the return to work of UK employees who were previously shielding can be a highly emotive issue, and one which is directly impacting on employers now.

Now that shielding has come to an end in the UK, employees who were previously in this position are reporting feelings of anxiety, with the BBC reporting on individuals and charities worried that they may have to choose between "a job and their health". At the same time, as the seasons change and schools in England prepare to return, there is a sense that businesses will also be starting to return to 'normal', with more employers taking steps to facilitate the return of larger numbers of employees to their usual place of work.

Employers of affected employees will have taken significant steps to communicate effectively with those with particular concerns and conduct the necessary risk assessment. The below applies where a UK employer has taken these steps and the employee remains reluctant or refuses to come into work.

Would it be a 'reasonable adjustment' to allow an affected employee to continue shielding?

Employers are already facing difficult decisions in a confusing and challenging set of circumstances; with some GPs advising patients who were previously required to shield to continue to do so, despite the government's position changing on 1 August in England and Scotland and 16 August in Wales. It is not unreasonable to suppose that employers could well face a situation where two employees with the same or similar conditions receive conflicting medical advice, creating a scenario which needs to be handled very carefully.

It might be a reasonable adjustment to allow an employee to continue to work from home where this is possible, with a fixed date when this will be reviewed; or to take unpaid leave.

Although the official end to shielding in the UK suggests that employers have the green light to get employees back to work, this does not change an employer's duty to make reasonable adjustments. This is a duty the law places firmly on employers, so this should be proactively managed. If an employer knows that an employee has a significant health condition as a result of which they have been shielding, that employer should be discussing the change in government position with the employee now with a view to agreeing a plan for the employee's return to work or reaching an alternative arrangement.

Reasonable adjustments have to be considered by the employer on an individual basis - there can be no general rule applied here and every disabled employee will have different needs. However, it might be a reasonable adjustment to allow an employee to continue to work from home where this is possible, with a fixed date when this will be reviewed; to put in place different working hours or duties to avoid the need for peak time travel or certain people-facing tasks; or to allow an employee to take unpaid leave.

The question of adjustments is a live one even for those employees who have not been shielding but who have been working from home and may now be required to travel to their place of work all or some of the time. Employees may feel understandably anxious about being required to physically return to work; and employers are thrust into the uncomfortable position of having to decide what is a significant mental health condition amounting to a disability in the law, and what is simply a 'normal' everyday reaction to the uncertainty and worry that the pandemic has caused for many people.

Importantly, there is no general requirement to pay a disabled employee more than one who is not disabled, so the requirement to make adjustments is unlikely to cover extending sick pay. However, in circumstances where an employee's GP is advising that they continue to shield then the employee may well be best considered as off sick and there may be other particular circumstances where this is relevant, so it is best to take advice.

What if the employee's location is subject to a local lockdown?

According to the local lockdown guidance for the north of England, shielding is no longer generally advised for clinically extremely vulnerable people. An exception currently applies in Blackburn with Darwen, where shielding has been extended. Affected individuals in this area are being sent new letters extending the period of shielding until 7 September, with those who have not yet received a letter and needing to provide evidence for their employer advised to contact [email protected]

There appear to be variations across the UK, even where local lockdowns apply. For example, in Aberdeen, local lockdown guidance states that shielding is not required. These geographical differences will not assist employers, and means that some research as to what is currently in place in the relevant areas will be required. This will no doubt also change over time.

We know that lots of employees have moved temporarily, perhaps to re-join their families during lockdown. These employees may not have updated their employer on their current location, and probably are not required to if the move is intended to be temporary. Affected employers will need to understand where their employees are located, and any local concerns which apply.

Are previously shielding employees entitled to pay?

Statutory sick pay

Shielding employees were entitled to statutory sick pay (SSP) while shielding was required. To qualify for SSP, the individual had to have been "advised by a shielding notification sent to, or in respect of, that person in accordance with that guidance, to follow shielding measures for the period specified in the notification".

As shielding has now ended, the vast majority of employees will not be covered by valid notice. It seems that only employees in Blackburn with Darwen who receive a new shielding letter would be entitled to SSP. Shielding is not being extended in other local lockdown areas.

Company sick pay

We are starting to see examples of confirmation of a requirement to continue shielding being provided to individuals by a private doctor or consultant. This is neither a Public Health England notification, as required by the SSP regulations, nor a 'fit note'. However, the terms of the company sick pay (CSP) scheme should be reviewed to check whether this type of correspondence might meet the requirements for CSP to be payable.

Care should also be taken where one employee is able to produce such evidence and another, who is experiencing the same or a similar health condition, is not. Whilst discrimination laws usually require a comparison between a disabled and a non-disabled employee, the employee relations impact of treating similarly disabled employees differently is something to bear in mind.

Is fit note certification required where the employee says they are unfit for work?

The evidence of the employee's unfitness for work does not need to take the form of a fit note, although this is what employers usually receive. Reports in different formats which may be provided by private doctors or consultants will need to be carefully considered, enlisting help from Occupational Health where possible, to assess whether it amounts to a doctor's statement confirming that the employee is not fit for work. Where this is the case SSP could be payable, as could additional CSP depending on the scheme rules.

Should we treat employees quarantining on return from leave in the same way as those who wish to continue shielding?

No. Mandatory quarantine is different from sick leave.

Additional research by Amy Hextell of Pinsent Masons, the law firm behind Out-Law.