From 1st August, it appears that all protections relating to shielding are being removed. No more statutory sick pay, no more food parcels, and it’s back to work. So, what do we need to do?
No doubt we’ve had plenty of patients call us already, asking us to sign them off work or asking for advice on what to do, and we’ve signposted them straight back to their employer.
But what happens when YOU are the employer?
Many of us have staff who have been shielding since lockdown commenced. Some of them will have been working from home, and some of them won’t have been able to due to the nature of their role.
But from 1st August, some of the support available to those who are shielding is being removed. No more statutory sick pay, no more food parcels, and it’s back to work.
Government guidance is that, where possible, people who are shielding should continue to work at home. If they cannot work from home they can go to work, as long as the business is COVID-secure.
What should we do?
The first step is to have a conversation as early as possible with your employees. We’ve all heard the government’s message so it’s not going to be a surprise. However, it may fill some of them with anxiety, so we need to nip that in the bud as soon as we can.
You don’t have to make concrete plans at this point. A telephone call to staff explaining that you’ve had the update – as you’re sure they have – and asking how they’re feeling about that is the first step. Listen to them. Acknowledge their concerns. Update them on what you’ve been doing at the practice and what safeguards you have in place already. Ask for their ideas – how do they see themselves coming back to work? Take their points on board If you don’t feel you can commit to any of their suggestions just yet, then don’t! Explain that you’ll think about what they’ve said, liaise with your partners and the team (if applicable) and catch up with them in another week. Reiterate we have plenty of time to sort arrangements out. They’ll thank you for not rushing them.
Your next step is to risk assess. What health condition does the employee have and how does it affect them? If it’s a case of reduced immunity, what can be done to lower the risk at work? If it’s a respiratory problem, how will they be affected by things like wearing a face mask? If the employee isn’t patient-facing, can they work in a non-patient-facing area?
What you have to remember is that there is an obligation on you to try and make the working environment “COVID secure” for their return. This means somewhere that allows for social distancing, has adequate PPE and infection-control measures in place. That’s actually quite a lot of what we do already! For an admin member of staff, if you have an area where there are no patients coming in, there’s enough room to spread staff out and you can give them masks and hand gel – then you’re golden.
For patient-facing staff this is slightly more difficult. Use telephone triage where possible, put your shielded staff into ‘cold sites’ or limit them to seeing only other shielded patients – who should all be a low risk as they shouldn’t be having increased contact with other people either. Where working from home is still an option, this should continue. Consider if staff can be redeployed into clinical work that doesn’t involve seeing patients (e.g. carrying out more telephone triage than non-shielded staff, reviewing policies, updating/delivering training, carrying out welfare checks over the phone, etc.)?
Where there’s not enough work for the employee to do, consider whether a reduction in hours is needed. This can be temporary or more permanent depending on how discussions with the employee go and their individual needs. You may find that many staff are concerned about being in the practice so much that they actually request a reduction in hours from you. If this is the case, make sure this done as per your Flexible Working Policy. Any change in contractual working hours, either temporary or permanent, should be with the agreement of the employee and confirmed in writing. Requests for flexible working normally only allow for one request in a 12-month period, however, it would be reasonable in the current crisis to allow for temporary changes or ‘trial periods’ – whatever you agree you should ensure that you are still able to plan your staffing and ensure cover in essential roles and services. Make sure you build in regular reviews of any temporary arrangements and that you have the right to revert back to the original contractual arrangements if necessary.
Contact the staff member regularly and when you have a plan in place, confirm their start date and make arrangements for them to come back in. It’s also good practice to communicate to the rest of the team when they’re coming back and what they’ll be doing. You may want to consider a phased return to work (supplemented with working from home or using accrued annual leave) to make their return a little less full-on if they’re concerned about jumping straight back in.
But what do I do if I can’t implement any of these things for my staff member?
This is a tough one – especially as we currently have no end date in sight for the pandemic. The vast majority of shielded patients are likely to be classified as disabled under the provisions of the Equality Act 2010. This means there’s a statutory duty on you as an employer to consider and make reasonable adjustments where possible. All of the above ideas can be classed as reasonable adjustments.
But if these adjustments aren’t possible, or they’re not possible for the long term, what can you do? Sadly, not a lot, and you may have to consider terminating their employment .
You need to be cautious when doing this. You must follow a fair procedure and ensure you have documented every meeting you’ve had, every adjustment you’ve considered and had to turn down – and the reasons why. You need to have sent the employee to Occupational Health for an opinion on whether there’s anything they can do and what is classed as safe working. If you don’t do this, the employee may have a claim for disability discrimination and you’d be very likely to lose at tribunal so seeking occupational health advice is paramount.
Consider whether ill health retirement is an option for the employee too – if they are a member of the NHS Pension scheme and haven’t reached retirement age yet, and there’s literally no role you could offer them in the practice as a result of their condition, you could opt to support an application for ill health retirement. However, this still means that the employment has to be ended – either through resignation or termination. Staff cannot remain employed and be in receipt of ill health retirement benefits at the same time.
The key thing to remember is to be supportive. I’m anticipating that lots of unscrupulous employers will find themselves at tribunal in the next year or so over how they’ve treated their disabled staff – so you need to ensure you follow your policy, support them as much as possible, implement reasonable adjustments or, where this isn’t possible, justify your reasons for not doing so. Document everything and seek advice if you’re not sure what to do.
It will be a tricky few months for all of us, but together we can get through it!