TEY-10.2

Teachearlyyears.com 71 W ith nurseries and early years settings now reopening more widely, dealing with anxious staff may become a more pressing issue. While the coronavirus infection rate has subsided, it is likely that certain members of staff may be reluctant to return to work. Risk assessing your environment, implementing “reasonably practicable” controls and sharing your findings may be enough to put staff at ease. However, staff may insist they feel at risk despite the arrangements in place to protect them. So how should these matters be approached? FIRST, IT’S IMPORTANT TO UNDERSTAND THE RISKS Reluctant returners will require careful handling, as mismanagement may result in Employment Tribunal claims. If an employee is pregnant, for example, placing pressure on them to return to work where they do not feel safe to do so could amount to discrimination. Even in normal circumstances, employers have a duty of care to ensure that the health and safety of pregnant employees is not put at risk at work. Regarding coronavirus, it is essential that individual pregnancy risk assessments are undertaken to identify what level of risk the individual is exposed to. With shielding now paused, except in Wales and for those areas currently in local lockdown, high-risk staff should be able to return to the workplace provided all government guidance on social distancing and health and safety protocols are followed. If these individuals refuse to return in view of JANE HALLAS IS HEAD OF EDUCATION AND SOLICITOR AT ELLIS WHITTAM their vulnerable status, given that their medical condition is likely to qualify as a disability under the Equality Act 2010, forcing a return may similarly leave you exposed to discrimination claims. In these situations, you should discuss their concerns with them and undertake individual risk assessments. If attempts to address concerns fail, or the employee is able to provide specific medical advice confirming that it is not safe for them to be at work, they may be eligible to remain on furlough if you are able to, though you should seek confirmation from HMRC or, if possible, allow them to work from home. Otherwise, a period of unpaid leave would likely be a more proportionate response than taking disciplinary action. More generally, Section 44 of the Employment Rights Act 1996 gives employees the right not to be subjected to any detriment on the grounds that, “in circumstances of danger which the employee reasonably believed to be serious and imminent”, they left or refused to return to their place of work. A detriment will include a decision to withhold pay. If the employee is dismissed or resigns in this scenario, you could face an automatic unfair dismissal claim. These claims cannot be justified or defended, and employers cannot escape liability by arguing that it was “fair”. WHAT’S THE RIGHT WAY TO MANAGE REFUSALS? 1 Undertake appropriate risk assessments and in consultation with health and safety representatives, if you have them, or staff, if you don’t. 2 Communicate your findings and control measures to parents and staff to instil confidence and an opportunity to raise questions or concerns. 3 Where staff have specific reservations, speak with them on an individual basis to go through the risk assessment to pinpoint and address their concerns. A vulnerable person’s risk assessment may be required to take into account the employee’s specific circumstances and the associated workplace risks. 4 If their concerns are health related, consider whether medical advice is needed to see whether it is safe for them to be at work. If the employee is disabled, it is important that you make all reasonable adjustments. 5 If the employee is still adamant they won’t be returning, you will need to consider whether their refusal is reasonable or not. Their refusal to return only has to be reasonable, it doesn’t actually have to be correct. Download free specialist practical guidance, setting-specific risk assessments and policies from the Coronavirus Advice Hub at bit. ly/33UOIWC Jane Hallas, head of education and solicitor at employment law and HR support firm Ellis Whittam Jane Hallas examines the risks of forcing staff to return to work… What are the DANGERS?