Colleges need to think about how they will deal with staff who won’t return to work because they’re worried about their safety, writes Helen Dyke

The national lockdown will end on December 2 and be replaced by a new system of tiers. That means that everyone who can work from home is expected to do so across all three tiers.

However, the advice to people who are clinically extremely vulnerable will change, and colleges need to know what this means for any staff who fall into this category.

There are two ways a member of staff is classed as clinically extremely vulnerable. Either they have one or more conditions listed in the government guidance, or have been added to the shielded patients list by a medical professional.

During lockdown they were advised not to go to work if they couldn’t work from home.

But, from 2 December, the shielding programme will pause again for most people and they can return to work.

There are two exceptions to this. Shielding may be reintroduced in the worse affected local areas for a short period. 

Updated guidance suggests that this will apply to some tier 3 areas – but only if the chief medical officer deems this necessary.

Some, particularly vulnerable, people will also receive a new shielding notice.

Anyone who is explicitly told to shield should, therefore, remain at home if they can’t work from home. 

We don’t yet know how many people in this group will be asked to shield. However, if most clinically extremely vulnerable employees are not told to shield, many colleges will have to think about how they will deal with anyone who won’t return because they are worried about their safety.

Until a vaccine is rolled out, many vulnerable members of staff will be extremely nervous about venturing out – particularly if they live in an area where the infection rate is still extremely high, or their college is located somewhere with a particularly high rate. 

Employees are protected if their workplace poses a serious and imminent threat to their health.

Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace.

To be protected, the employee must have a ‘reasonable belief’ that their workplace poses a serious and imminent threat to them, or to others – including members of the public and their own families.

Anyone who has one of the medical conditions that makes them extremely vulnerable to becoming seriously ill or dying from coronavirus is likely to be able to establish a reasonable belief – particularly if the college they work in has had a number of outbreaks.

Therefore, even if college leaders are convinced that your workplace is safe, you should listen to concerns raised and try and agree a way forward.

If an employee claims they can’t work from home, colleges will need to look into the reasons for this. For example, they may say that working in isolation at home adversely affects their mental health, or that they aren’t properly set up for home working.

If they are working from their sofa on a laptop, colleges will need to ask whether they have a table they can work from (or space for one) and may in some cases need to loan them equipment.

If the issue is mental health, colleges need to look at making reasonable adjustments. For example, colleges may have to consider allowing clinically extremely vulnerable employees to come into work if they are willing to do so, including because of the risk to their mental health.

However, this requires careful consideration. The college must comply with the “Covid secure” guidelines for learning environments. The college should first of all undertake a specific risk assessment for each member of staff to ascertain the risk to their health of performing their usual duties and put in place steps to minimise these.

College leaders should then discuss their findings with the member of staff and consider whether they can take any additional measures, such as moving where they work so they have minimal exposure to other people or students, or amending their working hours.

It’s sensible to make an accurate minute of the meeting and ask the employee to sign this. This means it’s on record that the college has been through the risks with the member of staff and they themselves have expressed their preference to return to work – despite the very clear message from the government that they should remain at home.

It’s sensible to make an accurate minute of the meeting and ask the employee to sign this

If a member of staff cannot perform their role from home, the college may also be able to furlough them. Just remember ̶ they must have been on the payroll on or before October 30, 2020.

However, there are important restrictions around organisations with public funding. The guidance says: “If you have staff costs that are publicly funded (even if you’re not in the public sector), you should use that money to continue paying your staff, and not furlough your staff.

“Organisations can use the scheme if they are not fully funded by public grants and they should contact their sponsor department or respective administration for further guidance.”

Take advice if you’re not sure whether your college qualifies for the furlough grant.

Staff may also be eligible for statutory sick pay, employment support allowance or universal credit.

If employees are in roles that cannot be done from home and they refuse to be furloughed, they may be entitled to remain at home on full pay. Again, take legal advice if you’re not sure.

Another key point to remember is that many clinically extremely vulnerable employees with underlying conditions are likely to meet the definition of disability under the Equality Act 2010.

Colleges must not treat these employees less favourably and should make reasonable adjustments, which could include transferring them to another role in a lower-risk area.

Good communication with staff is key. Ultimately, colleges must speak to staff individually and agree specific arrangements.