Rebecca Bennett
Solicitor
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Date Published:19 Jun 2020 Last Updated:21 Jul 2021

Can Employers Request that Shielding Employees Return to Work?

Employment Law Advice

The Government’s updated guidance states that people who have been advised to shield remain vulnerable and should continue to take precautions. However, they are now able to leave their homes should they wish as long as they are able to practice social distancing.

There is a section in the Government guidance about employers and the workplace. The expectation is that employers should continue to support employees who are extremely vulnerable and have decided to comply with the guidance to shield and potentially stay away from the workplace.

The government has set out a series of steps for relaxing shielding guidance which comes into place from 6th July and 1st August. This ultimately means that people who have been shielding may be able to start to return to work subject to them being able to observe strict social distancing.

From 1st August shielding will be paused and from this date those shielding will need to adopt strict social distancing rather than shielding measures. If people cannot work from home, they will be able to return to work so long as the business is covid safe.

The guidance states that employees who are shielding should make every effort to work from home and employers must help the employee to do this. It may therefore be appropriate for the employee to be offered an alternative role or to adjust their working patterns temporarily.

If the employee is unable to work from home, they can be placed on furlough, under the Coronavirus Job Retention Scheme. This is provided that they have been placed on furlough for a minimum of 3 consecutive weeks prior to the deadline on 30 June 2020.

Alternatively, under the amended statutory sick pay regulations, employees who are shielding can be placed on statutory sick leave and be eligible for statutory sick pay. They may also be entitled to contractual sick pay, depending on the terms of the employee’s contract of employment.

Employers should take care when dealing with employees who are shielding as those with underlying health conditions are likely to fall under the definition of disabled, pursuant to section 6 of the Equality Act 2010 and therefore protected from unlawful discrimination. Employers have a duty to make reasonable adjustments for disabled employees and must therefore consider any necessary action.

What are the options for employees who are vulnerable or shielding?:

  1. Remain on furlough and use the Coronavirus Job Retention Scheme. If you are concerned as an employer that this is no longer relevant because work has picked up, you may wish to consider the below options;
  2. Consult with the employee over return to work, this is likely to include some adjustments e.g. home working, variation to role, risk assessment over returning to the workplace (remember all employers have a fundamental duty to protect the  health and safety of all employees);
  3. If no adjustments can be made and you cannot use the furlough scheme, look at a period of alternative leave i.e. holiday pay, sick pay, or unpaid leave.

If you would like any employment or HR advice, please contact our Employment Partner, Kate Brooks on 01202 057754 or email kate.brooks@ellisjones.co.uk.