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 * Home
 * Introduction
 * FAQs
 * WME Resources
   * Coaching
   * Pulse Extra Bulletin
   * Resourcing
   * School Guidance Measures
   * Wellbeing
 * National Guidance
 * Volunteering

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 * Home
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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

Visit Schools Website


FAQ’S

SHIELDING

From 5 January 2021 in England the coronavirus alert level has been raised to
the highest level (5 – red) meaning that the NHS is at risk of being overwhelmed
and the strictest social distancing measures must be put in place. Therefore the
3rd national lockdown is effective from this date.

The following information is in relation to England only. The government has
reintroduced the strictest measures which applied during the first lockdown in
March 2020. With the overriding message being “Stay at home”. People are only
permitted to leave their homes for a limited number of reasons permitted by law:

You must not leave, or be outside of your home except where necessary. You may
leave the home to:

 * shop for basic necessities, for you or a vulnerable person
 * go to work, or provide voluntary or charitable services, if you cannot
   reasonably do so from home
 * exercise with your household (or support bubble) or one other person, this
   should be limited to once per day, and you should not travel outside your
   local area.
 * meet your support bubble or childcare bubble where necessary, but only if you
   are legally permitted to form one
 * seek medical assistance or avoid injury, illness or risk of harm (including
   domestic abuse)
 * attend education or childcare – for those eligible

Colleges, primary and secondary schools will remain open only for vulnerable
children and the children of critical workers. All other children will learn
remotely until February half term. Early Years settings remain open.

Higher Education provision will remain online until mid-February for all except
future critical worker courses.

If you do leave home for a permitted reason, you should always stay local in the
village, town, or part of the city where you live. You may leave your local area
for a legally permitted reason, such as for work.

If you are clinically extremely vulnerable you should only go out for medical
appointments, exercise or if it is essential. You should not attend work.

Unless any further national guidance is issued Local Authorities should follow
NJC circular guidance issued during the first lockdown period in March 2020.
These can be found here

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?
Any person presenting with a high temperature (above 37.8) and/or a new
persistent cough and/or a loss of, or change to taste/smell, should self-isolate
for 7 days and should book a coronavirus test.

In addition, employees residing with any person showing symptoms should now
isolate for 10 full 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 10 days.

When will employees be eligible for a coronavirus vaccine?
The Government has published a priority list for distributing vaccination
against coronavirus. Phase one of the programme will see the following groups
vaccinated in priority order:

 1. residents in a care home for older adults and their carers
 2. all those 80 years of age and over and frontline health and social care
    workers
 3. all those 75 years of age and over
 4. all those 70 years of age and over and clinically extremely vulnerable
    individuals
 5. all those 65 years of age and over
 6. all individuals aged 16 years to 64 years with underlying health conditions
    which put them at higher risk of serious disease and mortality
 7. all those 60 years of age and over
 8. all those 55 years of age and over
 9. all those 50 years of age and over

There is currently no plan to extend priority to any other groups of key
workers. Guidance answering many key questions on vaccination in relation to
employment will be available shortly.

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. Tests are available for anyone displaying symptoms.

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. This guidance remains current.

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

Should we send staff who are unwell home?
As of 5 January 2021 a third national lockdown began and 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?
Similar to the first lockdown which commenced on 22 March 2020 the government
has re-introduced stringent measures from 5 January 2021 instructing the whole
country to stay indoors apart from a few specified reasons for leaving the home.

These are:

 * shop for basic necessities, for you or a vulnerable person
 * go to work, or provide voluntary or charitable services, if you cannot
   reasonably do so from home
 * exercise with your household (or support bubble) or one other person, this
   should be limited to once per day, and you should not travel outside your
   local area.
 * meet your support bubble or childcare bubble where necessary, but only if you
   are legally permitted to form one
 * seek medical assistance or avoid injury, illness or risk of harm (including
   domestic abuse)
 * attend education or childcare – for those eligible

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. It is possible that following implementation of the
third lockdown on 5 January 2021 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, these groups remain unchanged. To
recognise the employer’s duty of care any employees falling into the high-risk
categories below should adhere to the key new measures. Those previously
identified as CEV have now been instructed to remain at home. These employees
will receive a letter or text message informing them that should return to
shielding.

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 should not leave the house for any reason
unless it is essential. They are permitted to work from home where they can.

Should we ask staff to wear face masks?
Face coverings are required to be worn in most indoor environments. Your
covid-19 secure workplace risk assessments should identify where staff need to
wear face coverings.

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

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

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.

Covid-19 secure workplace guidance should be followed at all times and risk
assessments must by in place.

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 are using the Track and Trace App. 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).

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 5 January 2021 the risk level in the UK was raised to the highest level –
5 where there is a risk of the NHS being overwhelmed.

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 which has been extended
until the end of April 2021 are available here

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 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.




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