The Coronavirus Job Retention Scheme (CJRS) is due to end 30th June 2020, and whilst formal guidance is awaited from the Government, many employers will now begin to plan for the return of their workforce once lockdown restrictions are eased.

In this guide, we have collated some of the key considerations employers must begin to take into account when deciding who returns to the workplace, and when. 

How should an employer decide who returns to the workplace?

Firstly, employers should assess the composition of their workforce and identify all those who:

  • are classed as clinically extremely vulnerable and are shielding in line with Government guidance;
  • are classed as vulnerable in line with Government guidance;
  • have carer responsibilities for those who are shielding, or have childcare responsibilities due to school closures;
  • are in self-isolation due to COVID-19 infection; and
  • have suffered a bereavement.

When deciding which employees will return to the workplace and when, as well as addressing operational needs, employers will need to ensure that their decisions are fair and reasonable and not based on discriminatory criteria.

Best practice for employers will be to communicate openly and freely with their workforce to address any concerns individual employees may have as to when and how they return to work. It may be appropriate for employers to seek volunteers to return to work first. 

 

What about shielding employees?

The Government has published guidance on the individuals who fall within the category of clinically extremely vulnerable and must shield themselves.

Click here to view The Government website guidance on shielding employees.

Currently, Government guidance is that these individuals must continue shielding themselves until the end of June, however this period may be extended. Clinically extremely vulnerable individuals cannot, therefore, return to the workplace at present.

Best practice for employers is to keep up to date with changing Government guidance and to continue to allow these employees to work from home.

Those that are shielding are also eligible for Statutory Sick Pay (SSP).

 

What about vulnerable employees?

The Government has classed those who are at a high risk of getting a severe illness from COVID-19 as vulnerable people and advised that such individuals must take a strict approach to social distancing measures.

Click here to view The Government website guidance on staying at home for vulnerable people.

Employers must be especially careful and put in place such additional as are necessary to support those in their workforce who are in a vulnerable group in adhering to the Government’s guidance.

When assessing if, and when, vulnerable employees can return to the workplace, a robust risk assessment will be vital in determining the level of risk the workplace poses to each individual employee and what measures can be taken to address such risks. The health and safety of employees must be at the heart of any decision an employer makes as to when their vulnerable employees return to the workplace.

Click here to view our Employer's Guide Part 1 covering risk assessments.

 

What about employees who are self-isolating?

Government guidance is that those who are suffering from the symptoms of coronavirus, or living with someone who is, must self-isolate for 7 or 14 days respectively. Such employees will not be able to return to the workplace immediately.

It is recommended that employers create a return to work plan that accommodates for these absences and remains open to flexible working.

Those who are self-isolating are also eligible for SSP.

 

What about employees with carers responsibilities?

Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency, such as caring for children whose school has closed, or caring for a dependant who is sick, or needs to go into isolation as a result of COVID-19.

Whilst there is no statutory right to pay for this time off, some employers may offer pay depending on the contract or workplace policy. During this unprecedented time, best practice is for employers to remain sympathetic to their employee’s request for time off due to caring responsibilities, and devise return to work plans that accommodate for these additional absences.  Failure to observe statutory rights to time off can result in costly Employment Tribunal claims.

 

What about those suffering from a bereavement?

Some employees may be suffering from a bereavement as a result of COVID-19. Whilst there is no statutory right to bereavement leave (except for the death of a child) it is best practice for employers to be sympathetic to an employee’s request for bereavement leave in these unprecedented circumstances.

 

What if an employee refuses to return to work?

Some employees may experience stress and anxiety at the prospect of returning to work after spending a long period at home under the Government’s lockdown measures. Particular reasons for this may include factors which heighten vulnerability such as pregnancy, age or medical conditions. 

An employee is protected by law against unfair treatment and dismissal by reason of pregnancy, age, or a health condition that’s considered a disability under the law. Employers that unreasonably pressure someone to go to work, or unreasonably discipline someone for not going to work, may find that the response is a claim for unlawful discrimination or a claim for unfair constructive dismissal on grounds of unlawful instruction or breach of the implied term of trust and confidence.

Employers are advised to carefully listen to an employee’s concerns and discuss with them the measures taken to address any workplace risks. Employers can find further guidance on resolving issues with their staff from ACAS.

Clearer guidance from the Government on how businesses can return to the workplace is due to be released this week (week commencing 4.5.2020). It is recommended that employers keep checking to ensure that they are following the most up to date guidance. If in doubt, please take legal advice.

 

We're here to help.

You can contact our specialist Employment team on 0161 941 4000 or via email.

We also recommend paying close attention to any new government guidance at www.gov.uk and following our COVID-19 blog series.