Following the announcement by the Prime Minister on 31 October 2020 that a new four-week national lockdown would be imposed from 5 November 2020, the government has issued a catalogue of new guidance.
Our Schools HR team has received several enquiries from clients about staff in the Clinically Extremely Vulnerable (“CEV”) and Clinically Vulnerable (“CV”) groups in the light of the new national restrictions.
Whilst the general advice is for everyone to work from home where they can, as before an exception has been made for public sector employees working in essential services who are permitted to attend work as normal. Unlike in the first lockdown schools also remain open and those in the CEV group have not been sent formal shielding letters like before. Instead those in the CEV group are considered to automatically be clinically extremely vulnerable if either:
- they have one or more of the listed conditions; or
- their hospital clinician or GP has added them to the Shielded patients list. In this case they will receive a letter from their GP/hospital with advice on the steps they should taken including advice not to attend the workplace.
Understandably schools, dioceses and academy trusts have been left wondering what steps they now need to take in relation to CEV and CV staff to ensure they comply with their duty of care and the latest guidance.
What is the current guidance for vulnerable staff?
Clinically Extremely Vulnerable Staff
The New National Restrictions from 5 November Guidance (updated 3 November 2020) states that over this period of lockdown the government are advising the clinically extremely vulnerable to work from home. If they cannot work from home, they are advised not to go to work.
The DfE Guidance for Education and childcare settings: New National Restrictions from 5 November 2020 (updated 4 November 2020) states that those individuals who are clinically extremely vulnerable are advised to work from home and not to go into work. It advises staff to talk to their employers about how they will be supported at this time, including to work from home where possible.
There is additional relevant guidance from Public Health England (updated 4 November 2020) which is specific to those who fall into the CEV group. This states that it is strongly advised that CEV staff work from home and that they should not attend the workplace for the period of restriction.
Clinically Vulnerable Staff
The DfE guidance confirms that staff in the CV group may continue to attend work in line with current guidance.
Staff living with someone in the CEV or CV group
The DfE guidance confirms that all other staff should continue to attend work, including those living in a household with someone who is clinically extremely vulnerable.
What does this mean in practice?
Our view is that the advice makes sufficiently clear that those staff in the CEV group should work from home and not attend their place of work. All other staff can continue attending the workplace provided it is Covid19 secure and that they comply with their employer’s risk assessments and all the Covid19 measures in place.
What steps must we take in relation to CEV staff?
In the light of the above, we recommend that you take the following preliminary steps in relation to CEV staff:
- Identify those staff in the CEV group and arrange to meet with them as soon as possible to discuss the current guidance, if you have not already done so;
- In consultation with the employee revisit their individual risk assessment and discuss and agree with them the working arrangements that will be in place during the period of new restrictions;
- Consider what the employee can do from home. This may mean temporary redeployment or change in duties. Any such change should be discussed and agreed with the employee, and a date set when the arrangement will next be reviewed;
- Ensure the employee has all the necessary resources and equipment to be able to work from home;
- Ensure the employee is included in work updates, informed of any changes and given an opportunity to attend meetings, decisions and events (remotely) that they would otherwise be a part of if they were physically at work;
- Provide the employee with details of sources of support;
- Follow up in writing with a summary of what was agreed and/or any action points/next steps.
If any staff member raises concerns about attending work during this period, irrespective of whether they fall into a vulnerable group or not, you should meet with them to discuss their concerns and take the appropriate next steps where necessary. We recommend you take early advice in relation to such issues as matters relating to employees raising health and safety concerns require careful handling.
What if our CEV staff want to continue attending the workplace?
The government advice is guidance, and an individual may choose not to follow it. This will be a very personal decision to each individual. Understandably many of those in the CEV group are reluctant to go back to shielding and may be concerned about the impact on their mental health should they be prevented from attending their place of work.
Where an employee wishes to continue attending the workplace against government advice, this may present a tricky scenario for employers. On the one hand you would want to support your employee and treat them no differently to others, but on the other you must comply with your duty of care with regards to ensuring their health and safety at work.
If you are faced with this scenario, we recommend that:
- You meet with the employee and discuss their decision with them, if not already done so;
- Ask the employee to take advice from their GP/Consultant on the risks of attending the workplace and whether attending work is recommended, before you agree to their continued attendance at work;
- Make an Occupational Health (OH) referral and obtain a report on whether any further adjustments could be made to the workplace to minimise the risk to the employee, beyond the steps already taken under the risk assessment. This should be done before you agree to their continued attendance at work.
- Agree with the employee that they will work from home until the medical advice and OH report have been received and a way forward has been agreed with them. Explain to the employee that whilst you wish to support them in their decision the final determination as to whether they can continue attending the workplace during the period of restriction will be based on the risks identified and the medical evidence.
If the expert advice is that the employee should not return to the workplace during the period of restriction, then an employer may reasonably refuse to allow the employee to return to work. There is a risk that asking an employee to remain at home when they have requested to return to work could amount to a breach of trust and confidence, however a reasonable defence to such an argument could be that the employer is operating in unprecedented times and took the steps that it did to protect the health and safety of the employee and to comply with guidance issued by the government and DfE.
What about pay?
Our view is that a CEV employee who cannot attend the workplace on the advice/recommendation of the government is doing so due to their CEV status and not because they are not fit for work (i.e. sick). As such, provided they are ready, willing and able to perform work in accordance with the contract they are entitled to full pay. For this reason, as well as for the employee’s own career progression, professional development and mental health, it is best to explore home working, including temporary redeployment or change in duties (which should be consulted on and agreed with the employee before they are implemented).
Equality Act 2010 considerations
When dealing with staff in the CEV or CV groups, or indeed those living with someone who falls into either group, you must always have regard to your obligations under the Equality Act 2010. The definition of disability under the Equality Act 2010 is broad and it is likely that many of those in the vulnerable groups would qualify for protection from discrimination. The Equality Act 2010 also protects those who are associated with a disabled person or a person with another protected characteristic. Therefore your obligations under the Equality Act 2010 must be borne in mind when making any decisions relating to these staff, or any other staff with a protected characteristic.
All staff will likely be affected by the new national lockdown measures, particularly those in the CEV group who are now facing the prospect of not being able to attend work and only leaving their house in limited circumstances. As such it is important that staff are supported at this time and provided with sources of information and advice to help with their mental health. As well as your internal mental health First Aiders, HR and employee assistance programmes, staff can be directed to external sources of information such as Education Support and Mind.
For more information about managing staff issues during Covid19, or for advice and assistance with any other HR related matter, please contact our Schools HR team on email@example.com or visit our Covid19 hub.