Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores the recent development on shielding and what this will mean for employers.
As part of the Prime Minister’s roadmap out of England’s lockdown, it was announced that clinically extremely vulnerable people should continue to shield until the end of March 2021. This has been further confirmed by the Health Secretary, Matt Hancock, at a press conference on 17 March 2021. At this conference he clarified that shielding would be paused in England on 1 April 2021.
The Health Secretary also announced that letters will be sent to those on the shielding list asking them, even though shielding is being paused, to keep social contact at a minimum and stay at a distance from others.
What is shielding?
Shielding was first introduced on 29 March 2020 for clinically vulnerable people as a measure to both protect said individuals and relieve pressure on the NHS at the peak of the pandemic. It meant that those considered most at risk from the virus were told to stay at home as much as possible and not attend work even if they couldn’t work from home.
Shielding was paused in England on 1 August 2020 and reinstated in December 2020 for those in tier 4 of the country’s Covid alert system. Clinically vulnerable people across England were then asked to shield once again on 5 January 2021 as a result of England’s third national lockdown measure.
In February 2021, the Department of Health and Social Care (DHSC), as well as Public Health England (PHE), announced that up to 1.7 million more people had been added to the Shielded Patient List. These people have since been advised to shield, meaning that employers have had to consider more members of their workforce and look for alternative arrangements for them.
So, what happens now that shielding is ending again?
Employers may be faced with further questions from affected employees about possible arrangements that can be made in light of them being able to return to the workplace. We advise that employers should:
prioritise homeworking, where possible — the current guidance in England remains that people who can work from home should do so. This will be further emphasised in the letter sent to shielded people. The review date for homeworking guidance is still unknown so employers should prioritise this for as long as is necessary
take the time to listen to employees’ concerns and act accordingly, in a manner that benefits both the employee and the business as a whole
if homeworking is not possible, remember that the furlough scheme has now been extended until the end of September 2021 so consider putting affected staff on furlough if they are eligible to be furloughed; remember that being extremely clinically vulnerable to serious illness from the coronavirus will no longer be a sufficient reason on its own to furlough staff
if returning staff to the workplace is a necessity, publish risk assessments online that show measures the organisation is taking to prevent a coronavirus spread
reassure staff who are shielding that the workplace is Covid-19 secure by communicating the reasonable adjustments put in place to protect them.
In the workplace, employers can implement the following provisions before returning shielded staff to work:
avoid face-to-face seating arrangements in the office by changing office layouts
change shift patterns to reduce the number of staff on duty at any given time
make virtual communications a means of conducting training or meetings
put in place rules for managing social spaces/communal areas
promote regular hand washing, sanitising and workspace cleaning
being more attentive to staff mental health.
It is advisable for employers to send out letters and/or emails (to personal email addresses) detailing each employee’s proposed return date, the steps being taken to keep them safe, and offer opportunities for employees to express any concerns that they may have — or to request alternative working options.
The appointment of a communications co-ordinator could help towards managing the resulting impact of this as it assures staff that the business is dedicated to making sure they are well considered. This could also help to ensure that the business is aware of any problems with shielded employees who have been contacted about returning to work. This too will facilitate informed decision-making on the part of the employer and gives affected employees a point of contact for any return to work queries.
Constructive unfair dismissal may arise if an employee who returns to work is forced to resign because the employer has not reasonably supported their transition. Supporting an employee’s transition from having to shield to returning to the workplace can vary from ensuring that Covid-secure measures that especially protect those who are clinically extremely vulnerable are in place, to making sure they are kept up to speed with anything they may have missed whilst they were gone (to ensure that they can carry out their role effectively from that point onwards).
Shielders who return to work may also require further ongoing support and adjustments over time.
Making staff redundant
A survey of 6000 people conducted by Citizen’s Advice Bureau has shown that those who are shielding, or have shielded in the past, are twice as likely to be made redundant than any other employee. Employers should be aware that making clinically extremely vulnerable employees redundant simply because they are/were required to shield may give rise to successful claims of unfair dismissal. Redundancy situations occur where the need for a particular role has either ceased or diminished, not because an individual is unable to perform their role for any reason — including the requirement to shield.
Instead, employers can find alternative ways to manage the situation — eg homeworking, using annual/unpaid leave, or furlough. If employers have no other option but to render a role being carried out by someone who was shielding redundant, they must ensure that they follow a fair procedure and potentially make adjustments to this procedure for those who are disabled.
Where disability is concerned, employers should keep in mind that some clinically extremely vulnerable people may also be classed as being disabled under the Equality Act 2010, thus potentially giving rise to additional claims of disability discrimination if a fair procedure is not followed.
Employers should prioritise homeworking or furlough and take the specific circumstances of an anxious employee into consideration before taking the decision to return them to the workplace. Where there are multiple employees shielding, there cannot be a “one size fits all” approach to returning them back to work as each employee will have different reasons for being concerned about returning — or some none at all. For example, one flexible working arrangement will not always work for everyone.
Employers will have to communicate effectively with each affected employee to ascertain how best to move forward in ways that benefit both the employee and the wider business.
Scotland and Wales
In Scotland, from 26 April 2021, people who are shielding can return to work where homeworking is not possible. Similarly, the Welsh Government has confirmed that, from 1 April 2021, shielding measures are to be paused. This means that those who have previously been advised to shield can return to work if they cannot work from home, as long as the business is Covid-secure.