New Government advice for clinically extremely vulnerable workers

Formerly shielding individuals advised not to attend work during lockdown.

The Government published on 4 November updated guidance for protecting people who have been categorised as clinically extremely vulnerable (CEV) to Covid-19.

The guidance “strongly advises” CEV workers to work from home if they can and to ”not attend work” during the national lockdown period (currently expected to continue until 2 December). This goes further than previous advice which suggested CEV people could attend work where they could not work from home as long as Covid-19 risk control measures were in place and stringently implemented.

Many CEV people will have received a letter or email from the Department of Health and Social Care in the last few days reiterating this advice not to attend work. The letter states that it can be provided as evidence to employers to show that the recipient cannot work outside their home until 2 December. It states the expectation that following that date guidance will once again be region-specific, suggesting a return to the 3-tier system.

We look below at the options for employers of CEV workers during the lockdown period. 

Working from home or on leave?

It is important that employers give serious consideration to the option of CEV staff working from home as a first resort. In that case, they will be paid their normal pay (unless short-time working arrangements are agreed).

If they are not able to work from home, they may need to take a period of leave. The options for this leave are as follows:

A period of sick leave?

CEV workers will (subject to eligibility) qualify for Statutory Sick Pay if they cannot work from home and do not attend work because of Covid-19. Whether this leave will qualify as contractual sick leave for the purposes of the employment contract will depend on the wording of that contract. Employers could decide to designate the leave as sick leave under the contract and pay contractual sick pay in line with that decision.

Discretionary paid leave?

Employers could decide as a discretionary measure to allow the CEV worker to take leave while being paid in full. Employers who take such decisions should be aware of the risks of setting a precedent and of discrimination claims where there is a lack of consistency of approach which could be argued to be founded on a protected characteristic.

Furlough leave?

The Government announced this week that it is extending the Coronavirus Job Retention Scheme (CJRS). See our article on this announcement, Furlough scheme extended due to planned lockdown in England: JSS launch delayed, here. The new guidance for CEV people states that employers will again have the option of putting CEV workers on furlough and claiming support for their wages under the CJRS. To be eligible, workers need to be on payroll and notified to HMRC by their employer on or before 30 October.

It is expected that the extension to the CJRS will be similar to the way the scheme worked in August. It will be possible for workers to be fully furloughed or to work short-time hours and for employers to claim for Government support towards employment costs for unworked hours. Where there is not sufficient work to employ CEV workers at home on their normal hours, but there is some work which they can do from home, this may be a good solution for employers.

However, it should be noted that the CJRS is not intended for use by organisations which are publicly funded (save where they have partial non-public funding which has been disrupted because of the pandemic).

Attending work?

The new guidance does not create a legal requirement for CEV people to stay at home or not to attend work. It is advisory only in nature.

Health and Safety Executive guidance on protecting vulnerable people at work states that, where it is not possible for CEV workers to work from home and they attend the workplace, employers must regularly review their risk assessment, and do everything ‘reasonably practicable’ to protect CEV workers from harm.

In some cases, CEV workers may wish to attend work despite the views of their employer and Government guidance. In that case, employers should review their risk assessments, taking into account the specific risks to the CEV worker and putting in place measures to mitigate those risks where possible. Where workers are determined to attend work contrary to such risk assessments, employers may need to consider a period of medical suspension on full pay. Employers should consider contacting their insurers in specific cases.

Avoiding claims and complaints

Employers should be aware of the risks of disability discrimination claims arising from any decisions about how to manage and pay CEV workers, who may well qualify as disabled for the purposes of the Equality Act 2010. Any decision based on a worker’s health condition or something connected to it should be proportionate and clearly justifiable, for example on the grounds of health and safety or business need. This could include both arrangements to stay away from the workplace and to attend the workplace.

Where CEV workers are asked to attend work, they refuse to do so on health and safety grounds, and are then subjected to a detriment or dismissal because of that refusal, there is also a risk of claims. Additionally, workers might decide to report their health and safety concerns to the Health and Safety Executive (HSE) who may take action to investigate the concerns. Employees who have raised health and safety to concerns with their employer or HSE could be protected as whistleblowers if they are dismissed or disadvantaged because of their disclosure.

Employers also have an overall duty to act reasonably when making decisions of this kind. Acting in a way which could damage the trust and confidence between employer and employee without good reason could lead to constructive dismissal claims.

Employers who can evidence the sound business or health and safety reasons for their decisions will be in a far stronger position should they in future face claims. However, explaining these reasons to their staff at the outset and discussing any issues or concerns with particular CEV workers will help to maintain trust and reduce the likelihood of grievances and claims.  Seeking legal advice at an early stage where issues arise will also help to minimise the legal risks.