COVID 19

Public Sector Guidance

Introduction

Here at West Midlands Employers we recognise what unprecedented times we are experiencing, and we want to stand with you as your Public Sector Partner, providing trusted advice, guidance and resources to help you through these difficult times.

This website is designed to put all the resources we have in one place specifically to support our Public Sector community, with regular updates and new features as the situation changes and we respond accordingly. We also have a Schools website with further support which you can access here 

If there are resources or support you need please contact the WME team, our mission statement is “To advocate, build and champion people centred organisations for a resilient and diverse public sector workforce that benefits everyone in the West Midlands” and our mantra is

“There when you need us most”

Rebecca Davis, Chief Executive of West Midlands Employers

FAQ’s

Shielding – Proposed Changes Workplace Impact

When does shielding of clinically extremely vulnerable people end?
From 6 July certain restrictions for those persons deemed clinically extremely vulnerable, who have been advised to adhere to the government’s strategy on shielding, are being relaxed. It is proposed that shielding will remain advisory until 31 July 2020.

Should an employee deemed to be clinically extremely vulnerable come to work?
The NJC circulars dated 17 March and 23 March are still relevant. As at 24 June no NJC update has been released in relation to those deemed to be clinically extremely vulnerable.

However, the government announced a proposed end to its shielding strategy for those individuals.
As with all employees those identified either as clinically vulnerable or clinically extremely vulnerable should work from home in the first instance.

Where a clinically vulnerable or clinically extremely vulnerable employee cannot work from home, they should be offered the safest on-site roles that enable them to maintain social distancing from others, once the advice to shield is lifted post 1 August. Individual risk assessments will be needed and you must be confident that the workplace is Covid-19 secure.

If clinically vulnerable or clinically extremely vulnerable employees are required to spend time within close contact of others, employers should carefully assess whether it involves an acceptable level of risk, whether the activity is essential for the work required, and what actions they can take to mitigate risks.

Many of these employees will be covered by the Equalities Act and you must be mindful of your duty to make reasonable adjustments.
The Job Retention Scheme may be applicable in a limited number of cases if employees in this category have previously been furloughed for a full 3 week period prior to 30 June.

Until further national guidance is available WME advise not to enforce any changes to working practices for these groups of staff. Those who are in agreement with a return to work with full risk assessments in place may do so from 1 August.

Here is a reminder of the key principles to ensure a Covid-19 secure workplace:

  1. Work from home, if you can
  2. Carry out a COVID-19 risk assessment, in consultation with workers or trade unions
  3. Maintain 2 metres social distancing, wherever possible
  4. Where people cannot be 2 metres apart, manage transmission risk
  5. Reinforcing cleaning processes

Can employees refuse to come to work if they feel unsafe?
Your risk assessment process will include consultation and input from your Trade Unions and it is anticipated that any issues will have been identified and addressed. Individuals in this group will need additional risk assessments.

You should engage with the employee, and where appropriate their representative, to discuss any specific concerns they have. At present it is not advisable to take any action against an employee in this group. It is possible that employees who feel unsafe due to their own health conditions may use S44 of the Employment Rights Act 1996, in that they have a reasonable belief that there is a serious and imminent danger to their health and safety. At this stage the risk of this claim is relatively high and success uncertain. We anticipate small numbers in this category but should you have a specific case, you should seek further advice.

Now that there is a proposal to reduce the 2m social distancing rule can we bring more people into the workplace?
The government advice is still to maintain the 2m social distancing measure where possible. Your risk assessments will have taken this into account when establishing covid-19 secure workplaces. The risk assessments will also have identified areas where this is not possible and appropriate measures to reduce transmission risk.

The advice remains that where possible people should work from home where they can.

The proposed changes are not intended to increase the numbers of people in workplaces already operating and there should be little need to make major amendments to your current practices at this stage.

Coronavirus New Phase 1 of the Recovery Strategy – FAQs

When should an employee self-isolate?
The guidance on self-isolation remains the same, any person presenting with a high temperature (above 37.8) and/or a new persistent cough should self-isolate for 7 days. Self-isolation is particularly important during the recovery phase and those presenting even mild symptoms should obey this instruction (see next question on testing).

In addition, employees residing with any person showing symptoms should isolate for 14 days.

In addition any person identified as being at risk from contact with an infected person who has been contacted by an NHS Track and Trace worker must self-isolate for 14 days.

Any confirmed cases at work may result in colleagues being included in the track and trace process. Further advice should be sought from PHE.

What is the position on testing?
Any person showing symptoms is now eligible to book a coronavirus test. The government guidance on asymptomatic testing still only covers NHS employees and workers in care homes but in some areas, your local arrangements also cover asymptomatic persons. Please refer to your local arrangements for eligibility and access to testing.

How soon can an employee return to work following a covid19 test?
If an employee tests positive for Coronavirus they should continue to self-isolate for 7 days. If after this period they do not have a temperature and feel well they can return to work.

NHS guidance states that if an employee tests negative they can return to work as long as they feel well enough to do so and the following conditions are also met.

  • everyone they live with who has symptoms tests negative
  • everyone in their support bubble who has symptoms tests negative
  • they were not told to self-isolate for 14 days by NHS Test and Trace

Who should now return to work?
The guidance is very clear employees who are able to work from home should continue to do so. Essential workers have already been carrying out work as needed with many other functions being undertaken remotely. This should continue where possible and LAs in the region have indicated that the majority of their workforce who have been working at home will maintain these arrangements. However, you can now consider recommencing work which has not been essential but cannot be undertaken remotely. The government has provided stringent guidance on how to safely open workplaces and you must ensure you implement the Covid-19 secure measures which are based on 5 key principles:

  1. Work from home, if you can
  2. Carry out a COVID-19 risk assessment, in consultation with workers or trade unions
  3. Maintain 2 metres social distancing, wherever possible
  4. Where people cannot be 2 metres apart, manage transmission risk
  5. Reinforcing cleaning processes

Further information can be found at: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

What is the position if employees are unable to attend work due to school closures?
You should continue with the arrangements you already have in place as far as possible taking into consideration extended flexible working arrangements and homeworking. Key workers are able to access emergency school provision. The government is now encouraging all eligible children to take up places in this provision.

Should we ask staff to wear face masks?
From 15 June everyone will be required to wear face coverings on public transport.

The advice Government advice on PPE remains that PPE is necessary for those in Health and social care roles where they are in contact with infected people, people suspected of being infected or those who are highly vulnerable. PPE stocks will continue to be reserved for these workers. Guidance on face coverings in workplace of 11 May is currently still applicable. (https://assets.publishing.service.gov.uk/media/5eb97e7686650c278d4496ea/working-safely-during-covid-19-offices-contact-centres-110520.pdf) states that there may be circumstances where wearing a face covering may be marginally beneficial, the main benefit is not that it protects the wearer but that it may help to reduce the spread from asymptomatic persons. The following points are important.

  • Face coverings can be used in enclosed spaces where social distancing is difficult to maintain or not possible
  • They must not replace other risk management measures
  • They are not to be considered PPE
  •  Wearing a face covering is optional but should be supported by employers if an employee choses to wear one and ensure employees follow the guidance below:
    •  Wash your hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and after removing it.
    • When wearing a face covering, avoid touching your face or face covering, as you could contaminate them with germs from your hands.
    • Change your face covering if it becomes damp or if you’ve touched it.
    • Continue to wash your hands regularly.
    • Change and wash your face covering daily.
    • If the material is washable, wash in line with manufacturer’s instructions. If it’s not washable, dispose of it carefully in your usual waste.
    • Practise social distancing wherever possible

What should be covered in the risk assessment and what precautionary measures should we take in an office environment?
The guidance for offices includes the following areas which must all feature in your risk assessment

Social distancing

  • Coming to and leaving work
  • Moving around the workplace
  • Workplace and workstations
  • Meetings
  • Common areas
  • Accidents, security and other incidents

Managing contacts

  • Visitors, contractors, clients
  • Providing and explaining guidance

Cleaning

  • Before opening
  • Keeping the workplace clean
  • Hygiene, handwashing, sanitation facilities and toilets
  • Changing rooms and showers
  • Goods handling, merchandise, other materials and onsite vehicles
  • PPE and face coverings

Workforce management

  • Shifts
  • Working groups
  • Work related travel
  • Communication and training
  • Inbound and outbound goods

The guidance contains checklists for each of the areas above. https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/offices-and-contact-centres

What about other workplaces?
The same 5 key principles of working safely apply but in the context of different workplaces separate specific guidance has been written.

This includes factories, plants and warehouses some of which should be considered for Depots.
https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/factories-plants-and-warehouses

Construction and other outside work, including highways maintenance.
https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/construction-and-other-outdoor-work

Vehicles
https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/vehicles

Working in other people’s homes
https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/homes

Who is considered high risk?

The government defined at risk categories and the strategies and measures implemented to protect them. Further the NJC guidance of 23 March gave advice about what measures LAs should implement. You should review individual circumstances, implementing the Covi-19 secure measures and the overriding consideration needs to be the health, safety and welfare of the employee in a vulnerable category. The first key principle is also that to consider that where employees can work from home they should continue to do so. The table below shows the current government guidance. Further NJC guidance is expected on this in due course.

If an employee travels abroad and is required to quarantine on return is this period of isolation paid?
The NJC circular of 5 June confirmed that Part 2 para 10.9 of the Green Book applied where employees were required to self-isolate or quarantine in circumstances where they unwittingly found themselves need to self-isolate due to regulations changing in the UK whilst they were out of the country. This provision therefore applies in circumstances where an employee has travelled to a country which had an “air corridor” (no requirement to quarantine on return to the UK) at the point at which the outward journey commenced. Where an employee books a holiday or travels in the full knowledge that they will be required to quarantine on their return the provision does not apply. Please see the full WME guidance on quarantine periods for further information. Guidance on Quarantine Periods

When should an employee self-isolate?
As of 16 March 2020 the government has stated that any person presenting with a high temperature (above 37.8) and/or a new persistent cough should self-isolate for 7 days.

In addition, employees residing with any person showing symptoms should now isolate for 14 days.

Travel between countries is severely restricted and on 19 March 2020 the Foreign Office advised against all but essential international travel. Any employee returning to the UK should now self-isolate for 14 days.

Will employees who self-isolate continue to receive normal pay?
Employees who are absent due to illness will obviously be subject to normal sick pay arrangements.

Under the Green Book – employees who are prevented from attending work due to contact with an infectious disease are entitled to be paid normally and the period of absence will not count against the sick pay entitlement. Should the employee be confirmed as having contracted Coronavirus they will transfer to sick pay at this point. However as of 12 March 2020 the government announced that routine testing of people showing symptoms will cease and testing will only take place upon hospital admission. Managers should regularly contact employees who are self -isolating to establish whether they become ill during the period.

The government announced that employees would receive sick pay from day one of absence due to Coronavirus infection. Any LAs who have moved away from Green Book sick pay arrangements and do not pay for the first 3 days absence will need to ensure that the first three days are at least covered by SSP.

What about teachers?
The Burgundy Book contains different terms to the Green Book and Section 4 paragraph 10 sets out some information re infectious diseases, specifically paragraph 10.3, when someone in the household is suffering from an infectious disease and the teacher is unable to attend work this should be counted as sick leave/pay, however, if it is due to an infectious disease being in the workplace then it should not be reckoned against sick leave entitlement but would be for SSP purposes.

There has been no national guidance issued in relation to the Burgundy Book terms. We will update you in relation to any further advice.

Will absence for Coronavirus count towards sickness triggers?
The NJC circular dated 6 March 2020 recommends that LAs consider discounting absence relating to coronavirus in terms of sickness triggers due to the unprecedented nature of the outbreak.

What is the position if employees are unable to attend work due to school closures?
If employees are unable to attend work due to enforced school closures LAs will need to apply their flexible working and special leave arrangements. Consideration should be given to extending flexible working arrangements for example by changing core hours and/or extending the working day. If it is possible for the employee to work from home this will not affect pay. Where it is not possible for an employee to work from home, special leave policies and time off for dependants entitlements will apply, however it is worth bearing in mind that this position is unprecedented and we would expect some national guidance should there be widespread school/workplace closures.

Should we send staff who are unwell home?
As of 22 March 2020 the government instruction is that everyone who can work from home, should work from home. However where employees do need to attend a place of work the NJC circular dated 6 March 2020 and advice given on 12 March relating to anyone displaying symptoms of a cough or fever should be followed. These employees should be sent home at the earliest opportunity and self-isolate for 7 days. The NJC circular states that consideration should be given in relation to at risk groups and extending flexible working arrangements as far as possible should be considered to both protect provision of services and to recognise the employer’s duty of care.

Who should attend work?
On 22 March 2020 the government introduced stringent new measures instructing the whole country to stay indoors apart from a few specified reasons for leaving the home. These are:

  • To shop for essentials, such as food and medicine
  • To attend for work where this is essential and only where it cannot be done from home
  • For medical care
  • To care for a vulnerable relative
  • Once a day for exercise (such as a walk, run or cycle) as long as this is not in groups of more than 2 (excluding family groups from the same household).

All local authority staff who can work from home should now be working from home. Each local authority will have identified who their key workers are and this should align with the government definition. Our regional guidance on key workers can be found here.

How do we provide evidence so our key workers can travel to work?
Employers can produce a letter confirming the job role the employee is required to carry out and that this is classified a key worker. As well as this documentation being provided to schools to demonstrate eligibility for a place in the emergency education provision, it may be useful to demonstrate a need to travel to and from work. Since 22 March 2020 people may be challenged by the police with regards to their reason for being out of the home. The DHSC stated that there is currently no requirement for workers to be carrying official paperwork like other European countries however it may be something that is considered in future. The DHSC stated “If asked by police the purpose for their journey those working in e.g. the social care sector should simply state they are travelling to carry out work that cannot be done at home, and explain their key worker status. If employers feel that their staff would feel reassured by it, we suggest they provide a hard or electronic copy of a letter from their employer explaining their key worker status and why travel to a place of work is essential”.

Who is considered high risk?
In the government announcement on 16 March 2020 high risk groups are recommended to implement the measures and restrictions. To recognise the employer’s duty of care any employees falling into the high-risk categories below should adhere to the key new measures. Further on 22 March 2020 certain groups have now been instructed to remain at home as part of the government’s “shielding” strategy. These employees will have received a letter or text message informing them that should remain at home for 12 weeks.

High risk groups are defined as

  • pregnant women,
  • people over the age of 70
  • those with certain health conditions (other adults who would be offered a flu vaccine)

The instruction for high risk groups is:
They should remain in their home for 12 weeks and should not leave the house for any reason. They are permitted to work from home where they can. Essential food and medication will be delivered to them by Local Authorities where they have no other means of obtaining these things.

Should we ask staff to wear face masks?
Public Health England have advised that there is little robust evidence that use of masks has any widespread benefit outside of a clinical setting. Further there is evidence to suggest that wearing face masks in public could make the wearer more at risk for a number of reasons including the fact that masks could trap the virus and it gives the wearing a false sense of security and could make them more complacent. As at 20 April 2020 there has not been an update on the widespread use of face masks. The advice Government advice on PPE remains that PPE is necessary for those in Health and social care roles where they are in contact with infected people, people suspected of being infected or those who are highly vulnerable. https://www.gov.uk/government/collections/coronavirus-covid-19-personal-protective-equipment-ppe

Whilst other roles may request PPE it is highly likely that stocks are not sufficient to distribute to roles outside of health and social care. WISH guidance for waster operatives gives clear guidance on measures to ensure the safety of employees carrying out these roles. https://wishforum.org.uk/wp-content/uploads/2020/03/WISH-INFO-13-COVID-19-and-waste-management-activities-March-2020.pdf

What precautionary measures should we ask staff to take in the workplace?
Where staff are unable to work from home and need to attend a place of work they should be reminded of the following advice:

  • Maintaining good hand and respiratory hygiene such as regular hand washing and using disposable tissues when coughing or sneezing.
  • Washing hands before eating, drinking, taking medication, applying make-up, inserting contact lenses etc.
  • Ensuring cuts and grazes are washed immediately with soap and running water and a dressing applied, and that other wounds are kept covered.
  • Disposing of tissues immediately into a bin.
  • Safe food practices
  • Avoiding close contact, when possible, with anyone showing symptoms of respiratory illness such as coughing and sneezing.

Staff who can work from home should be encouraged to ensure they have their laptops and other work equipment with them at all times to enable them to work from home should an unexpected need to stay at home arise.

What if someone with Coronavirus has come into work?
If an ill employee is subsequently diagnosed with Coronavirus Public Health England (PHE) health protection team will get in contact with the employer to:

  • discuss the details of the case
  • identify employees and other people who have been in contact with the affected person
  • carry out a risk assessment
  • advise the employer on any actions or precautions to take

What should an employer accept as evidence of the need for an employee to self-isolate?
There are no official documents being issued so LAs are free to decide whether verbal notification is sufficient or whether they require an employee to produce any evidence. Where an employee has travelled abroad to a country of concern you could seek evidence of the dates and destination of the holiday. Employees could be asked to send a screen shot of the advice to self-isolate if they have used the NHS 111 on-line service or you could email employees a short declaration form so the employee states the reason for the need to self-isolation (i.e. returning traveller, contact with known case).

NB from 12 March 2020 people with mild symptoms are no longer being asked to call 111 but they can still use the on-line advice. Discretion will be needed in establishing the facts around the need to self-isolate but as with all sickness absence, any employee falsifying such claims could be subject to disciplinary action.

Should an employee come to work if their partner/someone in the household is self-isolating?
No. As per the guidance issued on 16 March 2020 anyone who lives with a person who is self-isolating due to symptoms should begin a period of self-isolation themselves for 14 days.

Can employees undertake other roles/work?
Please see guidance and redeployment FAQs by clicking here

What happens if employees (including key workers) are refusing to work?
In the current situation some staff are being asked to move away from their normal duties and into roles which are critical for the maintenance of essential services. Where possible staff will be asked to move to a role with similar duties or in a related area. This may not always be possible however, and LAs need to maintain flexibility and be responsive in these difficult times. A risk assessment should be undertaken to ensure the appropriate training and support is given, as well as any Personal Protective Equipment (PPE) and safe working practices needed whilst alternative work is carried out.

Employees should raise any particular concerns with their line manager in the first instance, who will consider individual circumstances on a case by case basis. The reason for the refusal must be identified and where the reason is considered legitimate redeployment may not go ahead. However employees cannot refuse a reasonable work instruction and disciplinary procedures may be appropriate. At this time the view is that asking all employees to support the emergency response is reasonable under the extraordinary circumstances and that as public sector employees we have a duty to deliver the government’s strategy in responding to the crisis. At present there is no recommendation that pay is automatically stopped for refusal to carry out alternative duties. Legal advice should be sought in any situation where this is being considered.

What is the current risk level in the UK?
As at 16 March 2020 the UK Chief Medical Officers have raised the risk level in the UK from moderate to high.

In the case of sickness absence, self-isolation or any other situation where casual staff are unable to attend work do they need to be paid?
The key thing is to establish whether the individual is truly casual. This means that there is ‘no mutuality of obligation’ in that you are not obliged to offer work and the person is not obliged to take up the offer of work. Where this is genuinely the case and any work done by the individual is purely ad hoc then it may not be necessary to make payments. If, however, there is a pattern of work, even if it is a small number of hours, and the only reason they are not working is due to the Coronavirus, then they should still be paid, based on the average pay over the reference period. Some Local Authorities have moved “regular casuals” onto fixed term contracts to make their position clearer. The basic principle is that nobody should be worse but neither should any person be better off than if they had been available for work. If in doubt about whether to pay or not you should seek advice on a case by case basis.

Do we need to pay overtime?
Obviously where employees are working additional hours they need to be compensated financially with the appropriate overtime payments.

Where employees are working from home you need to establish what hours they are working and what hours you need them to be working. If this includes a requirement for overtime then all hours worked should be paid for in accordance with individual contracts of employment (e.g. overtime and enhancements may not be made above scp 28 where the salary can be set to include such additional work).

Where employees are self-isolating or unable to work from home because their role cannot be carried out at home and no alternative duties are available, basic contractual pay should be honoured but there is no obligation to pay overtime unless it is contractual (rarely seen in Local Government contracts). An argument could be made that where overtime has been regular this should be considered and individuals and unions may argue that this is “normal pay”. Currently the legal advice is that basic contractual pay should be honoured. If you think you have a case where overtime should be included please seek specific advice.

Does the Job Retention Scheme apply to Local Government workers?
The Government has announced that all employers, including local authorities, which, due to the effect of the virus, would need to make their employees redundant, can instead designate then as furloughed (subject to the terms of their contract or agreement with the employee). However, Government guidance on the scheme makes it clear that while the scheme is available to public sector employers, the Government does not expect the scheme to be used by many of them, as they will be continuing to provide essential public services. The guidance also states that where employers receive public funding for staff costs, and that funding is continuing, it expects employers to use that money to continue to pay staff in the usual fashion. Details of the scheme are available here and we will update this FAQ as further details become available.

Has any guidance emerged on how to treat IR35?
The Government have not currently provided any advice on how to treat IR35 staff. The current view is that decisions about the status of any staff should be based on whether the Local Authority had budgeted for that work to take place and therefore the pay for the individual in line with the contract should be maintained.

The view on whether IR35 staff can be furloughed or not follows the same logic in that if those workers were budgeted for through central funds then there is financial provision to continue to pay these workers rather than to furlough them. Where furlough may be appropriate is when a role is financed through income generation. As IR35 workers are being paid from a budget, furlough does not apply. The advice is to treat IR35 workers as an employee and also recognise that the government are not expecting Local Authority’s to use furlough where finance for these posts are still available. We will keep you updated on further advice on this.

Are the NHS paying honorariums?
NHS have not made any decisions to pay Honorariums nationally. The NHS have a very regulated and rigid pay structure which leaves no room for additional payments of this kind. We are not aware that the NHS are doing anything formally however there may be local decisions that are being made. We will share any updates on this as and when we are informed.

Agencies are requesting/demanding schools to furlough agency staff. What is the legal stance regarding this?
The crux of the matter is that in order for furlough to be applied, the employee needs to be on the organisations PAYE/payroll therefore it will be the agency’s decision and responsibility to furlough agency staff and not the schools. The LGA have provided guidance on agency worker pay where the school will continue to pay for agency workers if their support is required LGA Covid-19 Schools guidance:  Updated 7th April (from 3 April)

“Schools will continue to receive their budgets for the coming year as usual, regardless of any periods of partial or complete closure….We expect schools will draw first on their existing staff to maintain necessary provision, but schools may continue to need supply teachers and other temporary workers throughout this period. We encourage schools and employment businesses (agencies) to continue to liaise on any potential need to ensure workers are available where required.”

What should I do about an agency admin worker who started on 20 January to do an admin role. The assignment was until 1 May 2020. She was told to self-isolate for 12 weeks and whilst she has done some work from home; the majority of the work really needs to be done in the office as it involves printing off letters (this is a key worker support role work). Do I continue to pay her until 1 May 2020?
In advising you on an approach to manage this there are a number of considerations:

• Can you redeploy her to another area where she can fulfil her full 37 hours so that she is being fully utilised?
• Have you spoken to the agency about her contract to date and understood the agency as your suppliers position in line with Procurement Policy Note (PPN) 02/20

If your response to first point is that there is no available work to assign her to/ redeploy her to then you have a number of options:

  1. In line with the government guidance you could continue to pay the worker until 1st May in full as you would if someone were on a fixed term contract. Please note that this is guidance from the government and it not enforceable.
  2. You can provide the right notice in line with the contract and end the contract early. This is in line with employment law and you have the provision to do this in the terms of the agency agreement.
  3. You can use the guidance contingent workers by the cabinet office and pay the worker 80%/£2500 cap – you will need to discuss this approach with the agency in terms of taking this option and how to process the time sheets etc – the potential future risk is that this appears to be an unaligned to the equal treatment in relation to “basic working and employment conditions – Agency worker regulations 2010
  4. There is a strong sense to support the supply chain and this part of the flexible contingent labour market and this is the motivation for the government to recommend the options that I have highlighted in point 1 and 3 above.

Can Local Government employees get a coronavirus test?
Yes. From 24 April 2020 any local government employee, or a person who resides in their household, who is showing symptoms of coronavirus can request a test through a local testing centre. Currently testing is only possible for those people showing symptoms to establish if they currently have the virus. It is a non-invasive test which involves a swap taken from the back of the nose and throat. Employees may request the test themselves and should speak with their manager to establish local procedures. Managers may ask employees who report in with symptoms undergo a test. More information can be found at https://www.gov.uk/guidance/coronavirus-covid-19-getting-tested. There are currently no widespread antibody tests to establish whether someone has had the virus and recovered.

Can employees refuse to undergo a coronavirus test?
Managers should first seek to establish the reason for refusal. Where the employee may have difficulty in attending a test centre alternatives should be explored and this may mean that testing of the individual is not possible. It may be critical to establish whether a key worker or someone they live with has the virus or not in terms of maintaining service provision. Local Government employees are subject to a provision in their terms and conditions which means that the employer has the right to request that they submit for reasonable medical examination, and therefore refusal without good reason could amount to a failure to follow reasonable instruction. However, careful consideration of the case should be made before taking any action and the provision obviously does not extend to members of the household who are not employees.

What happens if employees are refusing to work due to a lack of PPE resulting in a statutory function not being delivered?
The LGA have taken extensive legal advice on the matter which has been circulated to Councils. The first issue that arises is the question of whether the council can act to seek to make the employee carry out the work. That would normally take the form of disciplinary action and/or withdrawing pay.

The question of whether such action was legitimate would depend on whether the council’s requirement for the employee to carry out the work was within the terms of the employee’s contract, and the instruction was reasonable. Amongst other factors this would take into account the council’s duty to provide a statutory service, the steps it has taken to provide for the employee’s health and safety and the employee’s personal circumstances, for example, do they live with someone who is in a vulnerable group. In circumstances where the employee was not being provided with PPE in accordance with HSE and PHE guidelines, and the refusal to work was on account of that, then is very unlikely that any such disciplinary action or withdrawal of pay would be legitimate and it could lead to successful unlawful deductions from wages and/or unfair dismissal claims (including ones alleging whistleblowing and/or detrimental treatment/dismissal on health and safety grounds).

In any event, even if the employer’s action was legitimate, the employee could still refuse to work, and a council could not then seek a court order requiring the employee to carry out the work. This is because section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits a court from taking such action.

If a council was failing to provide a statutory service, then the most common form of action it could face would be judicial review. The relevant legislation itself may also contain appeal/remedy provisions which could be enforced against the council through the courts.

In terms of judicial review, the following remedies are available for the court to grant to the claimant if their application for judicial review is successful:

  • Court orders
    • quashing orders (the original decision is nullified and remitted back to the decision maker for reconsideration who must reconsider the decision in light of the court’s findings)
    • mandatory orders
    • prohibiting orders
    • injunctions
    • declarations
    • damages.

It should be note however that judicial review is a discretionary remedy. Therefore, the court has considerable leeway when assessing whether relief should be given to the claimant. It is important to note though that because of section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992, a court could not make an order compelling an employee to carry out work to deliver the statutory service.

Can a furloughed employee take part in a disciplinary or grievance process?
Yes, following consideration of a number of factors. Employees have the right to raise a grievance during a period of furlough and it is possible to continue with a disciplinary case involving a furloughed employee. You will still need to apply your assessment of whether or not to pursue a case, including whether or not a fair process can be followed. WME have issued a framework of guiding principles to help with this. In addition ACAS have issued guidance regarding furloughed employees which states that during a period of furlough employees can take part in a disciplinary if it is on a voluntary basis and can be carried out in line with current public health guidance.