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Supporting Clinically Vulnerable Employees

Supporting Clinically Vulnerable Employees
27th May 2020
 

As businesses start to take steps to re-open workplaces, they will be acutely conscious of the health and safety implications of employees doing so. 

This is particularly true in terms of those who are considered clinically vulnerable with underlying health conditions, and how they might return to the workplace.

With guidance from Nick Elwell-Sutton and Rod Hunt, Employment Partner and Health and Safety Partner at Clyde & Co respectively, we look at employer best practices regarding clinically vulnerable people.

 

"As a vulnerable person in the 'at-risk' category, and her condition known to her employer, there are questions about why she wasn't stood down from frontline duties early on in this pandemic.”

–Manuel Cortes

General Secretary, The Transport Salaried Staffs' Association

 

Belly Mujinga

 

After it was reported that Belly Mujinga, a ticket officer with underlying respiratory problems, died from coronavirus after being assaulted at work, some have questioned whether someone with such a health condition should have been stood down from front line duties.  Although we cannot know how Mujinga contracted the virus, she was spat and coughed at on the station concourse by a man claiming to have coronavirus days before she died. 

The Transport Salaried Staffs' Association (TSSA) general secretary Manuel Cortes commented at the time that:  "As a vulnerable person in the 'at-risk' category, and her condition known to her employer, there are questions about why she wasn't stood down from frontline duties early on in this pandemic.

 

Clinically vulnerable or extremely clinically vulnerable?

 

According to NHS guidance, there are two levels of higher risk for COVID-19: high risk (clinically extremely vulnerable) and moderate risk (clinically vulnerable). 

For the purpose of this article, we will be focussing on those who are clinically vulnerable, and have a moderate risk of severe illness if they contract coronavirus. 

People at moderate risk from coronavirus, have been asked to stay at home as much as possible, but are permitted to go out to work (if they cannot work from home) and for things like getting food or exercising.

Unlike people at high risk, they do not get a letter from the NHS advising them to stay at home at all times (known as shielding).

 

Risk assessments

 

In the COVID-19 Secure guidance issued by the government covering steps that employers need to consider relevant to their workplace in order to re-open, some of the advice is in relation to these clinically vulnerable individuals. 

Clinically vulnerable individuals, who are at higher risk of severe illness, have been asked to take extra care in observing social distancing and should be helped to work from home, either in their current role or in an alternative role. 

Where clinically vulnerable (but not extremely clinically vulnerable) individuals cannot work from home, Nick Elwell-Sutton told us that a core part of their return to work will be a risk assessment to identify workplace risks related to the transmission of COVID19 and the steps required to avoid or mitigate them.  

Employees should be offered the option of the safest available on-site roles, enabling them to stay two metres away from others. If they have to spend time within two metre of others, employers should carefully assess whether this involves an acceptable level of risk. 

For many workplaces, the risks will be more immediately obvious and manageable covering such things as symptom reporting and testing, social distancing and hygiene issues.  However, for many it may be vastly more complicated. 

 

"It is essential businesses, as a minimum, react promptly by putting in place arrangements to comply with the government's latest guidance (as well as the relevant regulations that apply to health and safety in the workplace), and ensure they keep the guidance under daily review and have arrangements in place to allow it to respond to any changes to the guidance immediately".

–Rod Hunt

Health and Safety Partner, Clyde & Co

 

Communication and documentation

 

Employers should consult employees around the risk assessment and ensure that all employees are familiar with it and provide any necessary training and PPE.

The experts at Clyde & Co maintain that it is just as essential that employers document, monitor, review, and update this risk assessment and enforce rigorously the measures identified, such as social distancing and hand hygiene.

Rod Hunt, Health and Safety Partner at Clyde & Co, commented: "It is essential businesses, as a minimum, react promptly by putting in place arrangements to comply with the government's latest guidance (as well as the relevant regulations that apply to health and safety in the workplace), and ensure they keep the guidance under daily review and have arrangements in place to allow it to respond to any changes to the guidance immediately".

 

Employee protection

 

Employment law also provides very strong health and safety protection to employees and in some cases "workers".  Whilst the whistleblowing protection in relation to disclosures about health and safety is relatively well known, in addition there are specific but until now relatively unknown provisions that protect employees from detriment or dismissal, Clyde & Co told us.

Specifically, where the employee leaves, or proposes to leave work in the face of serious and imminent danger, or refuses to return to work or takes protective steps to avoid serious and imminent danger.

In addition, if there is no workplace health and safety committee or representative or it was not  "reasonably practicable" to raise a concern with them, the employee is also protected if they "reasonably bring to the employer's attention circumstances which [the employee] reasonably believed were harmful or potentially harmful."

In all cases, the employee must reasonably and genuinely believe the potential risks to the health and safety and that is judged by their knowledge and the resources available to them. These protections do not have any length of service requirement and in dismissal cases are automatically unfair and not subject to the usual unfair dismissal compensation cap, says Clyde & Co.

 

“Serious and imminent danger”

 

The "serious and imminent danger" is satisfied here as coronavirus has already been declared to that effect by the government. The scope of the risk can be to any person, not just the employee concerned.  So it can apply to other employees, customers or visitors. 

The threshold for showing something as "potentially" harmful is also low, where there is any appreciable degree of risk. The circumstances are also not limited to just the workplace and so could cover other safety issues. For example, where employees need to travel or visit customers.

 

Section 44 of Employment Rights Act

 

Elwell-Sutton commented: "If anecdotal evidence is anything to go by these health and safety protections, which are mostly contained in section 44 of the Employment Rights Act, are the most googled in the Act, surprisingly more so than redundancy or dismissal, and which may give a flavour of things to come."

He continued: "Businesses will be keen to be seen to be doing the right thing and acting properly as a reputational and social responsibility issue.  As part of that the government's COVID-19 Secure guidance makes clear that it ‘expects’ those with 50 or more employees to publish their risk assessment on their website."  

Picture: A photograph of a person working at a laptop

Article written by Ella Tansley – published 27th May 2020

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