q Unshielding Employees – What are their Rights? - Thrive Law

Unshielding Employees – What are their Rights?


Shielding update

The current rules on shielding have now been put on pause in England meaning from 1 August 2020, those who are particularly vulnerable to Covid-19 are now expected to adhere to social distancing rules, rather than shielding measures.

Some people may need to shield past 1 August 2020 if they have been advised to do so by their doctor but otherwise, as long as your workplace is safe and you can adhere to social distancing measures, you may be expected to return to work.

In practical terms, those who were required to shield may also suffer from a disability under the Equality Act. A disability for the purposes of the Equality Act is a condition which has a long-term and substantial effect on the ability of that person to live their day to day life. This means that those people may be entitled to reasonable adjustments which will ensure the workplace is sufficiently safe for them, and may indeed require that employee to be permitted to work from home.

An interesting recent issue is that a local council may amend the limitations on individuals; for example, those who are vulnerable are, in some areas, still required to shield. Therefore, it may be that if you are in an area where you are still asked to shield then you will not be able to return to work and should continue to shield. If this is the case the employees should be placed on furlough and employers should do all they can to support employees during this difficult time.

Our MD Jodie Hill appeared on BBC Look North answering your questions in regards to un-shielding and returning to work. You can watch that video here.

Here are some of the questions which were answered (and some of the things which Jodie didn’t have time to say!).

Should employees who live in an area which has had a local lockdown imposed by their local government continue to shield or go to work? If the employee continues to shield what employment laws are in place to protect them?

As above, individuals who have been shielding are more likely to have a disability; this is ongoing whether they are still required to shield or not. If they are planning on or required to, return to work then they should be speaking to their employers about what is proposed. It may be that, as a reasonable adjustment, they could work from home, or be furloughed (however, they cannot be furloughed if they were not previously furloughed at some point). If the employee is going to continue to shield because that is what the local government is advising, then employers should be supporting that.

Our advice to employees in this situation is to reach out to their employers and have a conversation with them and understand;

  1. Whether to need to go back to work and;
  2. If you do need to go back to work, what measures are being put in place to protect employees within the workplace as an employee can only go back to work (whether they have been shielding or not) if it is safe to do so.

In regards to the latter, there needs to be an individual risk assessment and if you do have a disability, a discussion of whether there any reasonable adjustments which your employers need to know about and put in place.

For employees who are returning to the workplace and feel it is unsafe to do so, what can they do?

If an employee feels it is unsafe to return to the workplace, the first thing they need to do is raise the reasons why they think it is unsafe to return with their employer. Every workplace is going to be different, but there are guidelines in place for each different sector and employer should be complying with the social distancing guidelines to ensure it is safe for each individual to return to work whether they have been shielding or not.

If you have raised it with your employer and they do not deal with that correctly you can then you can raise an internal grievance, this may amount to whistleblowing if you are saying you think it is a breach of health and safety.

In short, you just need to make sure you are being clear on why you are saying it is unsafe to return to work before you take any further action. An unreasonable refusal to attend work may give rise to disciplinary consequences.

Can employees ask to continue to work from home if they think it is a safer option?

Employees can always request to work from home and, depending on the situation, that may be the most sensible option to take. There are many businesses now saying that, for the foreseeable future, they will be asking people to work from home where they don’t feel it is safe to return to the workplace. In our view, most employers are engaging in this.

If an employee ends up in a situation where an employer is reluctant but is able to make homeworking work for them they should raise an internal grievance and state the reasons why; for example, they think it will be more productive and say why it is safer for them to be at home.

Again, however, employees should be cautious of acting without following proper procedures and agreeing on any arrangements with their employer. A failure to follow reasonable management instructions may give rise to disciplinary consequences.

Is there any legal requirement on the employer to make sure premises are Covid secure?

Yes, there is, there is a health and safety requirement as well as the Covid risk assessments. which employers need to be conducting to ensure they are in line with the social distancing guidelines. You can read our blog here on ensuring workplaces are Covid-safe.

If individuals who have been shielding are told they have to return to work but they the only way of them commuting to work is via public transport and feel anxious about doing so, what should they do?

In the first instance, they should speak to their employer before they go back to work to see whether or not they can do their job from home as a reasonable adjustment. Especially if any fear of transport links to a disability, such as an anxiety disorder, arrangements for them not to travel at busy times may be a reasonable adjustment for that particular individual. If the employee is anxious because they have been shielding and have to return to work, again check with the employer if there is any other way they can do their job or any other route to work which they can take.

Our coronavirus helpline remains open, at coronavirus@thrivelaw.co.uk. Please do get in touch if you have any further questions arising from this.

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