COVID-19: Workforce FAQs23/03/20
The Covid-19 pandemic poses significant workforce issues for public service organisations regarding the services they provide and the risks to staff. A number of organisations have drafted Covid-19 HR policies and we list below the most frequently asked questions (FAQs) we have received in relation to these policies and communications with staff generally.
We have put together these FAQs for employers in sectors such as healthcare, social care, emergency services and housing, and therefore, some questions may not be relevant for your particular sector.
For how long must an individual self-isolate?
The latest guidance from the Government and Public Health England (PHE) requires those with a continuous cough or high temperature to self-isolate for a seven day period. Where you are living with someone who is displaying symptoms, you and the rest of your household should self-isolate for a period of 14 days. If you or another person in the household starts to display symptoms during that 14 day period, this will not restart the 14 day period but that person will be required to start a seven day self-isolation period from the date on which they first display symptoms.
Are those in isolation entitled to sick pay?
Employers will be aware that the Government has introduced emergency legislation so that statutory sick pay (SSP) is payable to those who are isolating on advice from NHS 111 or PHE, as they will be deemed unable to work. As current advice is that it is not necessary for those self-isolating because of a continuous cough or fever to contact NHS 111, they will not need to provide any evidence that they are unable to work.
The Government has also announced that SSP will be payable from day one of the isolation period for those self-isolating in the circumstances above, as opposed to from the fourth day of absence, as is normally the case. The Government has confirmed that the sick pay provisions will be applied retrospectively from 13 March.
Many contractual sick pay provisions, including section 14 of Agenda for Change (AfC, the national framework applicable to most NHS employees) state that they supplement SSP to provide additional payment during absence due to illness, and where this is the case, contractual sick pay for Covid-19 absences will also be due from day one of an isolation period.
For the first seven days of self-isolation, an individual can self-certify themselves as unable to work and is not required to provide the employer with any evidence. From day eight onwards, employers are entitled to ask for evidence that an employee is required to self-isolate. Rather than require a fit note from a GP, individuals will be able to submit an isolation form to their employer, confirming that they are required to self-isolate either because they have symptoms of Covid-19 or live with someone who has symptoms. The isolation form will be available from the NHS website and NHS 111 online.
Those who are in vulnerable groups, including those who have been advised to practise shielding for 12 weeks, are not entitled to SSP, unless they develop symptoms or live with someone who develops symptoms.
If staff are unwilling to attend work, but do not qualify for SSP, you will need to be flexible about whether you allow them to remain at home or whether you require them to work, in particular where working from home is not possible. There is no obligation to pay staff in these circumstances, but one option might be to offer paid sick leave for a limited period, or to require staff to take annual leave, special leave or a period of unpaid leave. A refusal to attend work could be treated as a disciplinary issue, although employers should think carefully about whether they want to take disciplinary action.
Where employees obtain a sick note from their GP regarding a period of absence during the crisis, they will be entitled to SSP. Where the reason for absence is something other than Covid-19, payment will be due from day four and not day one.
Can we refuse to pay sick pay to those who choose to travel to category 1 countries?
This depends on the wording on your contractual sick pay policy. Under AfC, contractual sick pay is not normally payable for an absence where contributable negligence by the employee is proved. In light of the Government’s guidance on travel, Trusts may want to make clear to staff that their position is that contractual sick pay will not be payable where individuals knowingly put themselves in a position where they will need to self-isolate.
What is the position with school attendance for children of key workers?
The Government has announced that children of parents where one or more parent is a key worker will be allowed to send their children to school during the closures. The 20 March 2020 HR guidance letter gives clear guidance on the keyworker scheme. The guidance makes clear that children should be sent to school only where absolutely necessary and there is an onus on workers to confirm with their employer that their specific role is necessary for the continuation of the essential public service. A precedent letter is attached to the guidance.
The following categories are deemed to be key workers:
Health and social care: this includes but is not limited to doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers; the support and specialist staff required to maintain the UK’s health and social care sector; those working as part of the health and social care supply chain, including producers and distributers of medicines and medical and personal protective equipment.
Public safety and national security: this includes police and support staff, Ministry of Defence civilians, contractor and armed forces personnel (those critical to the delivery of key defence and national security outputs and essential to the response to the COVID-19 pandemic), fire and rescue service employees (including support staff), National Crime Agency staff, those maintaining border security, prison and probation staff and other national security roles, including those overseas.
Where individuals refuse to attend work despite the provision of schooling for their children, employers may wish to consider allowing staff to take annual leave or unpaid leave, or could deal with the matter more formally if there is no good reason for non-attendance.
Are bank/casual workers entitled to sick pay?
Any entitlement to SSP will depend on whether a bank/casual worker has earnt a minimum of £118 per week over the previous reference period (usually 13 weeks) and where a bank/casual worker is on assignment at the time they need to self-isolate.
For healthcare organisations, recent advice from NHSE/I has been that bank staff and sub-contractors who need to be physically present at an NHS facility to carry out their duties should receive “full pay” for any period in which they are required to self-isolate as a result of PHE advice. We are aware that some NHS Trusts are taking the view that they will pay bank workers for shifts which have previously been agreed before the period of self-isolation in determining “full pay”.
We engage some locum staff directly using the direct engagement model. Will they be entitled to sick pay?
As these locums are directly employed, SSP rules would apply in the usual way. Whether or not they are entitled to contractual sick pay will depend upon the terms of employment but it would be unusual for there to be an entitlement in this situation.
What about staff who are not required to self-isolate but are particularly encouraged to practise social distancing for example because of age, pregnancy or an underlying health condition?
Even where self-isolation/social distancing is only advisory, an employer can insist on it where there are good reasons to do so, either in terms of protecting an employee’s health or the health of those around them. The key is the “good reason” point, which may involve taking advice from Occupational Health and establishing an organisation-wide position. This would likely take the form of medical suspension where applicable, or special leave if they agree to self-isolate. There may be some roles where they could continue to work remotely whilst self-isolating, provided the appropriate IT arrangements can be made and there are no issues with data security, and that should be encouraged where possible. It would also be prudent to implement arrangements for them to keep in touch with their teams even if they have to self-isolate (or are forced to stay away from work).
For NHS organisations, the NHS England/NHS Improvement letter to HR colleagues dated 20 March 2020 sets out provisions relating to vulnerable staff groups and annexes some guidance. This provides for “very high risk” groups in NHS organisations to be redeployed, work flexibly or work remotely. Over 70s, adults who are advised to have a flu vaccine and pregnant women should be moved to lower risk areas or work remotely. Additional guidance in relation to pregnant workers is available here and here.
The guidance generally states that pregnant workers should work from home or modify any public-facing role to minimise contact. If a worker is less than 28 weeks pregnant with no underlying health condition, she: (a) should practise social distancing, (b) can continue to work in a public-facing role with precautions, (c) should avoid treating patients with coronavirus or, if she has to, only do so with personal protective equipment (PPE), and (d) if she works in operating theatres, respiratory wards and ICU/HDU, use PPE at all times. If she is more than 28 weeks pregnant or has an underlying health condition, she should: (a) avoid direct patient contact, (b) work from home if possible or redeploy flexibly to non-patient facing roles, (c) avoid contact with anyone with symptoms of coronavirus, and (d) significantly reduce unnecessary social contact.
How do we record Covid-19 absences on ESR?
The NHS England/NHS Improvement letter to HR colleagues referred to above sets out provisions for how absences should be recorded on ESR, in relation to both rostered and non-rostered staff. It is vital that these provisions are complied with to track and model workforce data and ensure clinical and operational capacity decisions can be made.
Organisations are estimating that a significant percentage of the workforce are likely to be absent as a result of Covid-19 and are putting in place contingency plans to deal with staff shortages.
What should we do about vulnerable staff?
We recommend that staff planning takes into account those members of staff who are in high risk groups including those with compromised immune systems and underlying health conditions. Reasonable adjustments for those with disabilities may involve temporarily removing them from frontline areas.
Can we ask doctors to refuse private work to provide additional time to NHS work to support patient care?
The terms and conditions of employment and the job plans agreed with consultants will dictate the hours that NHS Trusts can insist are worked. The Consultant Contract does not expressly reserve the right for Trusts to amend a job plan without a doctor’s agreement.
However, Schedule 9 of the 2003 Terms and Conditions makes clear that a consultant is responsible for ensuring that the provision of private services for other organisations does not result in a detriment to NHS patients, or services or diminish the public resources that are available for the NHS. Paragraph 25 of the same schedule also requires the consultant to make all reasonable efforts to support initiatives to increase NHS capacity, including appointment of additional medical staff and changes to ways of working.
Trusts could rely on these terms to suggest that a temporary requirement for doctors to redirect their work to the urgent care needed to cope with Covid-19 is a flexibility permitted by the contract. That said, the usual principles of contractual interpretation will apply and any ambiguity in the terms of employment contract will be construed against the Trust. Any specific flexibility clauses will be given a restrictive interpretation by the courts and may be limited by an implied duty e.g. an obligation to exercise the flexibility reasonably.
Trusts may be able to also rely on an implied term that, in order to give business efficacy to the provisions in Schedule 9, it is necessary to imply that doctors will rescind other private or Supporting Professional Activities time in these exceptional circumstances. There is also an implied duty of fidelity, requiring employees to act in good faith, not to make a profit out of his/her Trust or place him/herself in a position where his/hers duty or his/her interest conflict, which would support a similar argument. Finally, there is an implied duty on employees to follow reasonable management instructions (although such instructions must be consistent with the contract of employment) and to be adaptable, which the Trust might be able to rely on for the purposes of giving business efficacy to the express terms in Schedule 9.
Initially, the main approach should be to engage with consultants about staff shortages and increasing capacity. The consultant and clinical manager may conduct an interim review of the Job Plan where duties, responsibilities, accountability arrangements or objectives have changed or need to change significantly within the year.
NHS Trusts are generally seeking to engage constructively with doctors and other clinical staff about agreeing temporary adjustments to working hours and increasing programmed activities/hours to deal with the crisis. Temporary measures that would be worth considering include:
- asking the doctors to relinquish their private work or offer assurances that the private work will be Covid-19 related (a number of Trusts are contracting with private hospitals to support the increased work);
- asking doctors to take on additional Programmed Activities. The consultant contract provides that Additional Programmed Activities can be offered without the usual three months’ notice where both parties agree and on a fixed basis;
- seeking to agree adjustments to the job plan around SPAs and DCCs so that most of the doctors’ time is temporarily devoted to direct clinical care, perhaps with an agreement that the time can be reclaimed in future when the urgent work is not required or if they are called upon to self-isolate.
Alternatively, collectively agreed variations can bind the employee if the union acted as their agent during negotiations or a collective agreement reflecting the change is incorporated (either expressly or impliedly) into the contract.
If agreement cannot be reached then the Trust might want to seek to rely on the provisions in Schedule 9 to mandate that doctors limit their private work with a view to supporting the Covid-19 response. Even if the courts interpret the flexibility clauses narrowly and find that the variation was not permitted under the contract, if the doctors nevertheless work to the mandate they may be found to have implicitly agreed to the variation.
The risk with this approach is that doctors may work to the variation under protest, and subsequently bring claims for loss arising from the breach. However, in the circumstances, the public benefit may outweigh the risk of any potential claims.
Can we redeploy staff?
Emergency planning policies are likely to deal with the core services which must be maintained during times of significant staff absence and also the ability to redeploy staff. In the absence of a specific contractual clause allowing compulsory redeployment, employers will need to rely on implied terms or express agreement to the change.
A term of fidelity and a term that employees will follow reasonable management instructions are implied into all contracts. In a time of national crisis such as this, where the employer is a public body, it can rely on these implied terms to encourage people to move into other roles where these moves are necessary to reduce/remove the spread of and treat Covid-19. For those employers that work with individuals who are regulated by professional bodies, there are also regulatory issues to consider as these individuals will have ongoing obligations relating to responding to risks to safety, working collaboratively with colleagues and maintaining trust and confidence in their profession. Refusing to support the effort may be a breach of such obligations.
In the event of an unreasonable refusal to follow a management instruction the usual repercussion would be disciplinary action. However, disciplinary action should not be the default position and may not be the preferred route at this time when continued engagement with the workforce is important. It can be hoped that the strong moral argument plays a part in the considerations of those who are called to undertake different roles to those for which they are employed. Accordingly, the first step should be to obtain agreement through engagement.
Can we redeploy to another organisation?
There is no reason why in theory you couldn’t transfer an employee to another organisation provided the actual employment doesn’t transfer. It works best if you are simply asking them to work at another site under the direction of another organisation’s manager but otherwise terms and conditions remain the same. If the role changes then that may be a further ground for objection. However, you can rely on the duty of adaptability, particularly given the current circumstances and depending on the locality of the alternative premises.
Workforce sharing agreements have become increasingly popular recently as groups of employers look to ways to work efficiently and transfer staff. A workforce sharing agreement can be put in place in relation to the Covid-19 pandemic ensuring that employment of staff remains with the employing organisation whilst services are provided elsewhere. For healthcare organisations, please refer to NHS Employers’ guidance on workforce sharing in the NHS.
The use of licences to attend may be considered under which host organisations can set out clearly an individual’s responsibilities whilst on site.
One point for parties to consider is where liability falls for any transferring employees’ salary and whether the host organisation will reimburse the employer. In addition, where overtime is needed, parties will need to be clear on the rates which apply and which will be liable for these costs.
Can we cancel previously agreed holiday periods?
Some Emergency Preparedness Plans state that previously agreed annual leave for staff may need to be cancelled in order to deal with staff shortages in the event of a pandemic.
Generally, an employer can cancel an employee's period of annual leave if it gives the required notice. Under Reg 15 of the Working Time Regulations 1998 (WTR), an employer can require an employee not to take annual leave on particular days by giving the employee notice of at least the same length as the period of leave to be cancelled. For example, if the employee has booked a period of four days' annual leave, the employer must give at least four days' notice of cancellation.
Employers can agree with their workforce alternative rules about the notice required to book and cancel leave. An employer should ensure that it complies with any such workforce agreement or contractual arrangement.
The Government is to vary the rules in relation to carry-over of leave to enable employers to be more flexible. The Working Time (Coronavirus) (Amendment) Regulations 2020 amend regulation 13 of the WTR to allow workers to carry over EU holiday into the next two leave years, where it is not reasonably practicable for them to take some, or all, of the holiday they are entitled to due to coronavirus. Note regulation 13 only deals with the EU four weeks' leave and does not therefore apply to the additional 1.6 weeks' statutory leave under the WTR (although this can be carried over for up to a year by agreement under existing law) or to any additional contractual leave entitlement (although this could be varied by agreement).
If an employer cancels a period of leave without a clear business reason and, for example, this results in the employee not being able to go on a booked holiday and suffering financial loss, the employer could face a claim for constructive dismissal or financial loss. In the current circumstances, however, where travel is increasingly restricted, this may be less of a concern. In many cases employees may prefer to defer holiday until a time when they are able to make better use of it or when it will put less strain on the service.
What about former NHS staff who are willing to return to frontline duties?
The NHS England/NHS Improvement letter to HR colleagues dated 20 March 2020 states that guidance on pay and terms and conditions for returning NHS workers should be published during the week commencing 23 March 2020.
The Coronavirus Act has received Royal Assent and suspends the usual rules relating to recently retired healthcare professionals so that they can return to work or increase their hours without any negative impact on their NHS pension.
Can we insist that staff treat service users in their homes?
The treatment of patients/service users at home in the event of bed shortages will require consideration of the contractual ability to insist that staff travel and provide care outside their usual place of work.
In every contract of employment there is an implied duty on employees to be adaptable and requiring an individual to attend service users’ homes may fall within this duty if the homes are within a reasonable travelling distance. In the alternative, a further point to consider is that where contracts of employment do not contain sufficient mobility clauses to require individuals to work outside employer premises, a temporary change may be agreed with staff.
Can we ask people on maternity leave to return temporarily?
Any return to work, other than for KIT days, will terminate maternity leave and pay. Whilst some employees may want to return early, they have a statutory right to 52 weeks’ leave and, therefore, an employer will not be able to insist on an early return. Where individuals are willing to come back temporarily and the time they return for is in excess of KIT days so that maternity leave terminates, we recommend that an agreement is reached with employees so as to enable the proportion of untaken maternity leave to be used at a later date at the same rate of applicable pay.
Can we enter a staff mobility agreement?
Yes. Workforce sharing agreements have become increasingly popular recently as groups of employers look to ways to work efficiently and transfer staff. A workforce sharing agreement can be put in place in relation to the Covid-19 pandemic ensuring that employment of staff remains with the employing organisation whilst services are provided elsewhere. For healthcare organisations, see the link below to NHS Employers’ guidance on workforce sharing in the NHS.
The use of licences to attend may be considered under which host organisations can set out clearly an individual’s responsibilities whilst on site.
In order for us to be able to bring in staff quickly, are we able to carry out ID checks for the purpose of DBS and right to work initially by reviewing scans?
Current advice in respect of both DBS and right to work checks states that when checking documents you must be in physical possession of the original documents, but that the holder of the documents can be physically present or present via a live video link, for example Skype or FaceTime.
We, therefore, suggest that you request that the original documents are sent to you by special delivery and then set up a conference call/video link etc. to verify the documents.
What about staff who are unable/unwilling to travel to/from their homes to provide services whether at their usual site or in the case of redeployment?
Hotel accommodation will be available free of charge to NHS staff who need to self-isolate, who cannot return home as family members are self-isolating and who require emergency accommodation due to exceptional factors. It can also be made available to Locum doctors and Community Interest Company workers where they are carrying out clinical services. Details can be obtained via a helpline (01274 726424 (choosing ‘Hotel team’, then ‘Option 1’)) and will be made available online also. As there may be large groups of NHS staff gathered in hotels, appropriate social distancing precautions should be taken.
Coronavirus job retention scheme and furlough leave
What are the details of the Coronavirus Job Retention Scheme? How can we put our staff on furlough leave?
Under the Coronavirus Job Retention Scheme (CJRS), HMRC will reimburse 80% of workers’ wage costs, up to a maximum of £2,500 per month, where employers designate those employees as furloughed. On 26 March HMRC published guidance on the CJRS. For further information on the CJRS and furloughing, please access our separate FAQ document here.
Personal Protective Equipment
Can we insist that frontline staff are clean shaven?
The requirement for frontline staff to wear face masks is proving controversial as the safety standards for the masks require that wearers are clean shaven. Employers must consider their duties under the Health and Safety at Work Act
1974, their general common law duty of care in respect of its employees and risk assessments under the Management of Health and Safety at Work Regulations 1999 in protecting staff.
However, enforcing a clean shaven policy may be unpopular, and we recommend that employers consider the potential discriminatory aspects of such a policy. Whilst the protection of the health and safety of the individual, other staff and service users should be a legitimate aim in implementing such a policy, given the potential race, religion and belief and disability claims which could result, it may be necessary to consider reasonable alternatives to face masks such as protective hoods or redeploying the individual away from the frontline.
Frontline staff should certainly be encouraged to be clean shaven. If staff shortages become such that reasonable adjustments cannot be made to accommodate those who refuse to shave, formal action could be taken.
Harassment of staff
We are speaking to organisations who are reporting discriminatory treatment of staff on the basis of their race/ethnicity. In supporting staff, a zero tolerance approach to harassment of employees should be maintained. For healthcare organisations this policy should make clear that service users and visitors are permitted access to healthcare premises for specified purposes only, i.e. to receive care or to visit those who are receiving care. Where someone is violent or abusive to staff, permission to attend can be withdrawn and if necessary, a healthcare organisation can seek an injunction order enforcing these restrictions. It should be noted that a more involved legal process is required in the case of an inpatient who both requires care but is also violent or abusive.
Employment practice and procedure and Employment Tribunals
What will happen to the ET hearings we currently have listed?
An announcement was made by the President of the Employment Tribunals that from Monday 23 March 2020 all in-person hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) that are listed to commence on or before Friday 26 June 2020 will be converted to a case management hearing by telephone or other electronic means which will take place (unless parties are advised otherwise) on the first day allocated for the hearing. If the case is set down for more than one day then parties should proceed on the basis that the remainder of the days fixed have been cancelled.
This direction also applies to any hearing that is already in progress on Monday 23 March 2020 and, if not already addressed before then, the parties may assume that the hearing on that day is converted to a case management hearing.
Any hearing listed to commence on or after 29 June will remain listed for hearing in the usual way and will be subject to further directions in due course. This will be subject to ongoing review.
No hearings will be heard in the Employment Appeal Tribunal before 15 April 2020.
If we have ongoing disciplinary matters, can we postpone these without unduly impacting the fairness of the process?
Whilst there is no specific guidance on this point, the Employment Tribunals are likely to apply their usual approach to delay in these processes: where there is a good explanation for the delay and individuals are being kept informed, the risk of a challenge is significantly reduced. Employment Tribunals are likely to have sympathy for the fact that the NHS will have had to focus its efforts elsewhere at the current time. However, there will be an expectation that staff are not wholly neglected so it will be important to keep them abreast of any developments and if staff are currently suspended, it will be particularly important to keep this under review.
NHS Employers have produced a comprehensive resource page on their website, linking to the relevant guidance documents. This includes advice on: (a) health and wellbeing, (b) communication with staff with a case study), (c) bringing staff back, (d) increasing workforce supply, (e) enabling staff movement, and (f) assurance (for example, in relation to recruitment and indemnities). The resource page can be accessed here.
If you have any questions regarding these issues please contact Nicola Green or Sarah Parkinson.