15 September 2020

Shielding paused in Wales from 16 August 2020: employment implications

The Welsh Government has amended its Covid-19 guidance for people who are shielding in Wales because they are ‘extremely vulnerable’, meaning that those people no longer need to shield from mid-August.

New guidance has been issued, which is in addition to the requirements set out by the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 (Regulations). This includes guidance on returning to work.

The guidance states that workers who are extremely vulnerable can now follow the same rules as the rest of the population in Wales and should continue to work from home if at all possible. However, if they are unable to work from home, they can return to work as long as the workplace is Covid-secure. Workers who previously had the right to claim Statutory Sick Pay (SSP) due to having been advised to shield will no longer be able to do so.

What is a Covid-secure workplace?

Businesses should help their extremely vulnerable workers transition back to work safely, firstly by complying with the Regulations and guidance issued by Welsh Ministers.

Part 3 of the Regulations deals with minimising risk of exposure to coronavirus at open premises and whilst working. To summarise, it notes that businesses should take all reasonable measures to ensure a distance of two metres is maintained. In addition, businesses will be expected to take all other reasonable steps, which might include:

  • Changing the layout of the premises
  • Controlling entrances, passageways, stairs and lifts
  • Installing barriers or screens
  • Providing PPE
  • Providing information on how to minimise risk and exposure in the workplace.

It also states that businesses must have regard to the guidance issued by Welsh Ministers. The most up to date guidance provides five key steps for businesses to take:

  • Carry out Covid-19 risk assessment
  • Help staff work from home, whenever possible
  • Take action to ensure that two metres physical distancing is maintained between people on your premises, where possible
  • Implement other measures to reduce the risk of exposure
  • Actively implement Test, Trace, Protect in the workplace.

Employers may be breaking the law if they do not comply with the requirements in relation to workplace distancing.

The new guidance also reminds employers that they should be mindful of the particular needs of different groups of workers or individuals and that it is against the law to discriminate, directly or indirectly, against anyone because of a protected characteristic such as age, sex or disability, race or ethnicity.

It also points out that employers have particular responsibilities towards disabled workers and those who are new or expectant mothers. If businesses fail to follow the Regulations and guidance issued by the Welsh Ministers, their employees may whistle blow to the Health and Safety Executive. This will may lead to investigations into the workplace and potentially considerable fines.

The return of extremely vulnerable workers may lead to very difficult issues for employers. They will need to bear in mind the particular vulnerabilities of previously shielding employees when carrying out risk assessments, and may have to consider additional measures which will allow those employees to work safely.

They will need to be mindful of both the Covid-19 specific requirements and their responsibilities under discrimination legislation. This may have a significant financial impact on the business. The return of shielding employees may also add to the pressure on businesses to consider redundancies and, if so, they will have to be particularly careful to ensure that they do not discriminate against such employees.

When the new guidance was issued, community transmission of Covid-19 was low. However, it is an evolving picture and Caerphilly County Borough has recently been subject to local lockdown and tighter restrictions, and is the first local restriction announced in Wales.

Neither the Welsh Ministers nor the Chief Medical Officer for Wales have announced any new specific shielding restrictions for the extremely vulnerable, only that, if workers can work from home, then they should.  However, the letter issued by the Chief Medical Officer makes it clear that vulnerable individuals may again be asked to shield if the position changes, although in future they hope to take a more targeted approach based on the risk to each individual.

If your business is facing Covid-secure workplace issues or considering redundancies then please contact Andrea Thomas at athomas@hcrlaw.com or on 07725 240 233.

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Andrea Thomas, Partner

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