Now that shielding has come to an end in the UK, employees who were previously in this position are reporting feelings of anxiety.
At the same time, as the season’s change and schools return across the UK, 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 should have taken significant steps to communicate effectively with those with particular concerns and conduct the necessary risk assessment. Some typical questions that are being asked by employers are addressed below:
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 that needs to be handled very carefully.
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 with a view to agreeing on 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 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 advisable to speak with an expert if you are unsure.
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 a 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?
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 unfit for work.
If you have any questions or need any legal advice give us a call on 0118 208 2000, or email us at email@example.com
David Philip Harris is a recognised employment solicitor with over 10 years of experience in advising employees and employers on employment law matters. He is a frequent contributor to BBC Radio Berkshire and People Management Magazine. David has represented individual and corporate clients in the employment tribunal as well as the High Court and County Court. David is a member of The Law Society and The Employment Lawyers Association (ELA UK). To contact David, visit the Contact Us page. For media enquiries: firstname.lastname@example.org.