This article was originally published in The Carer on 22 April 2020.
Whilst many industries have had to cease activity due to lockdown, the care sector is still working around the clock to deliver support and care to service users.
Unlike many others, care workers are largely unable to work from home, meaning they are putting themselves and their families at risk on a daily basis by coming into work. This, coupled with concerns over a lack of personal protective equipment (PPE), is placing employees and employers alike under huge amounts of stress.
By Toyah Marshall, Principal Employment Law Adviser
As an employer, you have a duty of care not only to your employees but also to your service users, meaning a balance has to be struck between protecting staff and ensuring the needs of your service users are met.
Some employees may be reluctant to come into work because they are high risk or live with a high-risk person or someone who has been ordered to shield. In those instances, according to the latest guidance, you could look to place those employees on furlough.
Weighing up whether to furlough
Of course, staffing levels have to be considered when making decisions about who to furlough and it is at your discretion whether to offer furlough or not. However, it would be advisable to consider at the least placing those who are high risk on furlough to avoid claims of discrimination or breach of trust and confidence if they feel they are being placed at risk by being forced to work. However, if an employee doesn’t fall into a high-risk category or live with somebody who is high risk yet refuses to attend work, this may be a potential disciplinary matter.
Handling refusals to work
If an employee is refusing to attend work simply because they don’t want to take the risk, this is potentially unauthorised absence and could warrant disciplinary action. However, if they are refusing to attend work because of concerns about PPE, or lack thereof, caution has to be taken in how this is addressed. Such a complaint can amount to whistleblowing, so any disciplinary action could be seen as detrimental treatment arising from a protected disclosure, leaving the door open to claims.
If the correct PPE has been issued in line with government guidance, and all other required health and safety measures have been followed, start by speaking with the employee about their concerns and exploring what can be done to alleviate them. If they still refuse to work, you could at that point consider disciplinary action. Again, if the employee has raised genuine concerns, it would not be advisable to discipline them as they will almost certainly have grounds to bring a claim.
You may also be faced with a situation where employees refuse to provide care to certain service users who have been diagnosed with COVID-19 or are symptomatic. Again, these situations require careful handling. If the employee’s concerns are genuine because they don’t have the proper PPE or isolation measures have not been properly implemented, they should not be disciplined or forced to work with that service user.
Taking care of your care workers
Even if your employees are fully prepared to work in this situation, staff shortages are likely due to employees falling ill themselves. It is therefore important to keep an eye on the hours employees are working to ensure they are taking adequate breaks away from work, especially if they are working overtime. Whilst many may have agreed to opt out of the 48-hour weekly working limit and are prepared to go that extra mile during this crisis, you still have a duty of care to ensure they take appropriate rest, if not only for their own health but to ensure they are fit and able to properly meet the needs of your service users.
These are trying and unprecedented times that everyone, not least the care sector, is trying to navigate through. However, by working together, listening to your employees and encouraging the dedication already displayed by so many, you will be able to not only minimise any risk to your employees but continue to provide quality care to service users at a time when they may need it most.
Supporting the Care sector through COVID-19
At Ellis Whittam, we understand that care providers are doing their best to navigate through the current pandemic with limited direction. To help you get the answers you need, we’ve created a Coronavirus Advice Hub, where you can find a range of free guidance notes and document templates, including a care-specific risk assessment tailored to your activities and the particular COVID-19 risks you face, as well as more practical employment advice.
