COVID-19: Workforce FAQs28/09/20
The Covid-19 pandemic continues to pose significant workforce issues for public service organisations regarding the services they provide and the risks to staff. 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?
Guidance from the Government and Public Health England (PHE) requires those with a continuous cough or high temperature to self-isolate for a ten day period (this has been increased from seven). 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 ten day self-isolation period from the date on which they first display symptoms. Those who are notified under the track and trace regime that they are required to self-isolate because they have been in contact with someone who has tested positive for Covid-19 will need to self-isolate for 14 days. With effect from 6 July, anyone who is in a linked household or “support bubble” with someone who is displaying Covid-19 symptoms will need to self-isolate for 14 days.
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. SSP is also payable to those who are self-isolating as part of the track and trace regime.
Employers with fewer than 250 employees will be able to claim back some of the cost of Covid-19 related SSP from the Government. The online Coronavirus Statutory Sick Pay Rebate Scheme went live on 26 May.
The legislation also provides 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.
The Government also introduced further emergency legislation providing that SSP will also be payable to those who have been identified as clinically extremely vulnerable and advised to shield. This does not extend to those who are living with someone who is shielding, however.
Shielding was "paused" from 1 August, so those who are clinically extremely vulnerable are no longer entitled to SSP (even if, because of their medical conditions, they unable to safely return to the workplace or work from home), unless the area they live in are placed in local lockdown.
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. However, note that from 3 September 2020, section 14 of AfC will not apply to COVID-19 related sickness for the duration of the pandemic (see below).
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 is available from the NHS and NHS 111 websites.
The sickness absence guidance for NHS staff was updated on 3 September 2020 and confirms that, for the duration of the pandemic, any sickness absence related to COVID-19 must be recorded separately and should not be counted for the purposes of any sickness absence triggers or sickness management policies.
If staff are unwilling to attend work, but do not qualify for SSP or COVID-19 special leave for NHS staff (which is payable to NHS staff who are self isolating and unable to work due to: their own health conditions; a member of their household having contracted COVID-19; being an NHS Test and Trace contact; and/or, Post Travel Quarantine, when agreed by local policy), 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. A dismissal may be automatically unfair under the health and safety provisions of the Employment Rights Act 1996. 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.
How do we calculate the amount of pay due to NHS staff on COVID-19 special leave and/or COVID-19 sick leave?
Full pay for the purposes of COVID-19 special leave and/or COVID-19 sick leave should be calculated by reference to pay received during either the preceding three months (for staff with set or regular hours/pay) or 52 weeks (for staff whose hours/pay varies month to month).
Pay should include all enhancements and all overtime payments (including voluntary overtime) received during the applicable reference period.
- it is important that COVID-19 special leave and/or COVID-19 sick leave is correctly recorded on ESR as the supplementary COVID-19 funding is linked to the accurate recording of absences and incorrect recording may have a detrimental impact on the amount additional funding an employer is likely to receive.
- the calculation of full pay for COVID-19 special leave and/or COVID-19 sick leave is entirely different to the calculation of holiday pay or pay for other leave.
- COVID-19 special leave has been paid from a central fund to date but we do not know how long this is likely to continue. So when offering paid COVID-19 special leave, employers should consider whether they are able to meet this cost where central funding ceases.
The 14 day quarantine period for individuals arriving in the UK from certain countries came into effect on 8 June. The list of countries to which this quarantine applies continues to be under review. How should we treat employees who are on a period of enforced quarantine? Are they entitled to SSP?
Employees will not be entitled to SSP for the quarantine period, unless they are displaying symptoms or live with someone who is symptomatic, in which case the usual rules relating to self-isolation will apply.
Staff should be informed in advance that any quarantine period needs to be taken as annual leave, if they cannot work from home. Employers could consider offering unpaid leave as an alternative, although this may cause staffing issues. Employers may also consider treating differently employees who had booked overseas travel before the quarantine measures were announced, and who cannot obtain a refund or claim on their insurance.
The exemption from quarantine for registered health or care professionals travelling to the UK to provide essential healthcare was removed on 30 July.
Do we need to pay employees who cannot return to the UK due to flight restrictions?
Employers should consider the individual circumstances with the employee and where staff are in quarantine, they should be treated as self-isolating and paid accordingly.
Where employees are not sick but simply cannot return to the UK, employers may wish to consider offering the use of special leave, annual leave or unpaid leave whilst the individual remains overseas.
For NHS staff, NHS Employers advises that where there is no reasonable prospect of staff returning to work from overseas, the national temporary COVID-19 special leave should be used and individuals should receive full pay (see below).
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, 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 or shield. 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”. Others are using a reference period, looking back at previous bank earnings. NHS Employers are advising that the latter approach should be used for consistency where possible.
The Government has published guidance on the protection afforded to contingent workers. Typically, contingent workers are those who are not engaged on permanent employment contracts but who work short term, variable hours. Under the guidance, where contingent workers are unable to work due to Covid-19 (e.g. illness or shielding) or due to schools being closed (in that case up to a max of seven days), they are entitled to receive 80% of their pay capped at £2500pcm.
However, the guidance is issued in relation to payments to suppliers of contingent workers. In the case of NHS bank workers, it therefore appears that the guidance only applies when workers are engaged through an agency and not when engaged directly by a Trust.
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.
Returning to Work
Following the Government’s recovery strategy which was published on 11 May where the reopening of certain workplaces was set out, the Government published guidance on returning to work. The current iteration of the guidance was last updated on 24 September 2020 (in light of the further restrictions announced on 22 September 2020 - see below), and is split into fourteen categories covering separate workplace settings.
The documents contain non-statutory guidance to assist both employers and employees in managing the return to work. It is important to note that the principles they set out do not replace or supersede existing obligations such as the statutory duties imposed by Health and Safety legislation and by regulations, equality legislation or an employer’s common law duty of care to its employees. We have produced a detailed legally privileged Advice Note for employers on the management of COVID-19 Health and Safety issues and risks. Please contact us for further details.
From 22 September, the government announced further restrictions. The default position for employers is once again that employees should work from home if possible. The following measures are now in place “office workers who can work effectively from home should do so over the winter. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so. Public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work. The risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely. Extra consideration should be given to those people at higher risk.”
What general principles apply to reopening?
On 11 September 2020, seven "priority actions to take - what businesses need to do to protect staff and customers" were added to the guidance on working safely during coronavirus. They are:
- Complete a COVID-19 risk assessment (in consultation with workers and trade unions) and share it with all staff.
- Clean more often (especially high touch surfaces and require staff and visitors to wash their hands frequently and use hand sanitiser)
- Ask your visitors to wear face coverings where required to do so by law (unless they are exempt from doing so).
- Make sure everyone is social distancing (and take steps to minimise transmission risks where this is not possible). This will require employers to consider whether that activity needs to continue for the business to operate, and if so, take all the mitigating actions possible to reduce the risk of transmission between their staff – these include:-
- Keeping the activity time involved as short as possible.
- Using screens or barriers to separate people from each other.
- Using back-to-back or side-to-side working (rather than face-to-face) whenever possible.
- Reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others).
- Finally, if people must work face-to-face for a sustained period with more than a small group of fixed partners, then you will need to assess whether the activity can safely go ahead.
- Increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
- Take part in NHS Test and Trace by keeping a record of all staff and contractors for 21 days (as of 18 September 2020 this is now a legal requirement for the following sectors – hospitality, tourism and leisure. close contact services and facilities provided by local authorities. To access the guidance click here).
- Turn people with coronavirus symptoms away.
What about employees who were previously deemed clinically extremely vulnerable (CEV) and required to shield?
As shielding is currently paused, unless a local lockdown is in place, individuals are unwell or otherwise required to self-isolate, they will not be able to claim sick pay for shielding.
If possible, employers should consider allowing CEV employees to work from home.
Where employers wish to bring CEV workers back to the workplace, in addition to the workplace risk assessment the employer should undertake an individual risk assessment for any vulnerable employees, taking into account the level of risk they are exposed to in the workplace.
Even if an employee was not deemed CEV and required to shield, they may meet the definition of clinically vulnerable and should also receive an individual risk assessment. CV and CEV employees may also meet the definition of disability under the Equality Act 2010, which will trigger the duty to make reasonable adjustments, for example varying time or place of work, or providing additional equipment. Employers may need to seek advice from the individual’s GP or from Occupational Health about any adjustments that should be considered.
The next step will be to consult with the individual employee on the outcome of the risk assessment and discuss with them the measures which can be put in place to ensure that the workplace is safe for them to return. Engaging with the employee and addressing his/her concerns will be key to a successful return to work. Documenting any adjustments that will be made in accordance with the workplace risk assessment, but also any specific adjustments that have been offered to the individual because of their vulnerability will also be important.
See the latest government guidance on shielding and protecting people who are clinically extremely vulnerable, and the latest guidance from NHS Employers on supporting staff to return to the workplace.
What if employees do not want to return to the workplace?
Ultimately, if the employer is of the view that the workplace can be made safe for the employee to return, but he or she is not prepared to do so, the employer may need to consider whether there are alternatives available if the employee wants to remain away from the workplace. Options might include home working, redeployment or alternative work (including at other NHS organisations), taking annual leave, additional paid special leave where available, the use of sick leave provisions, unpaid leave for a specific period of time, or a longer term career break. Ultimately, if there are no available alternatives then the employer may need to consider action up to and including dismissal, but this should be a last resort.
In certain circumstances, there could be a risk of challenge where employees assert that they were dismissed or suffered a detriment due to a refusal to attend work where they reasonably believe there is a risk of serious and imminent danger which they could not reasonably have been expected to avert.
For further information, contact us about our detailed and legally privileged guidance note referred to above.
Do we need to provide PPE?
The guidance states that when managing the risk of COVID-19, additional PPE beyond what a worker would usually wear is not beneficial with the exception of clinical settings, such as a hospital. In hospital settings that are unable to be delivered as COVID-19 secure, PHE recommends that all staff (both in clinical and non-clinical roles), when not otherwise required to use PPE, should wear a Type I or Type II facemask. It is not necessary, therefore, for employers outside healthcare and social care settings to provide PPE to staff routinely, although there may be certain circumstances when it is appropriate (for example, if the risk assessment shows that PPE is required). Subject to the outcome of any risk assessment, wearing a face covering is optional for staff in most workplaces (with the exception of those working in hospitality and retail and close contact services – from 24 September 2020 it is now a legal requirement that PPE be worn), albeit that their use is “encouraged". While employers should remind employees that should they chose to wear one, they will have to adhere to the usual rules regarding hand washing and social distancing.
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?
An employer can insist on an employee remaining away from the workplace 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 COVID-19 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 (which was issued when the shielding regime was in place) 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. All pregnant workers should have a risk assessment. 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 Covid-19 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 a woman is more than 28 weeks pregnant she is advised to remain at home, and should be redeployed to a homeworking role if possible. If she chooses to attend the workplace, however, she must not undertake a patient-facing role. She cannot be compelled to attend the workplace, however.
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. NHS Employers have published additional guidance on how to record absence for a member of staff who has tested negative for Covid-19 after self-isolating. This guidance is found here.
We have an employee who wants to return to the workplace; however, due to an underlying medical condition, we do not believe that we can make her workplace Covid-secure. Can we insist that she remains at home?
Employers have a duty of care to all staff to provide a safe place of work. By allowing an employee to continue to work there is likely to be a breach of this duty. In these circumstances, it is likely to be a reasonable management instruction to require an employee to remain away from the workplace. Where the employee is “ready, willing and able” to work, however, they would be entitled to remain on full pay.
Where possible, the employee should be required to work from home. We have produced a detailed legally privileged Advice Note for employers on the management of Homeworking issues and risks. Please contact us for further details.
If this is not possible, you can require employees to take annual leave, subject to the notice requirements in the Working Time Regulations (“WTR”). Alternatively, employers may be able to agree some form of special leave. Employees will not be entitled to sick pay medical suspension may be necessary (where applicable) and NHS staff may be eligible for COVID-19 special leave and pay if they agree to self-isolate.
If an employee insists on attending the workplace, can we ask them to sign some sort of waiver in the event that they contract Covid-19?
To mitigate against the risk of claims, it is important to document that the employee has chosen to attend work, and that a risk assessment has been carried out and any adjustments agreed and implemented. Ultimately, however, it is not legally possible to enter into an agreement that excludes liability for personal injury.
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 require staff to be tested for COVID-19?
Where testing is available, and presuming staff are able to travel safely to a testing centre, or are able to be tested at home, then it is likely to be a reasonable management instruction to require staff to undergo testing. Where staff are refusing to work and are refusing to be tested, then this could be treated as unauthorised absence and pay could be withheld, although employees should be warned about this first, and alternative options should be considered, for example home working, redeployment, taking some form of leave, or furloughing where available to employers.
Where staff cannot access a test safely, then this is not going to be a reasonable management request. If this is because they are self-isolating, the individuals will be entitled to SSP, and otherwise it may be possible to use some of the options above.
Staff should be encouraged to disclose their test results but, in any event, our view is that as non-disclosure of positive test results clearly puts patients and staff at risk, explicit consent of the individual is not required.
Staff should be encouraged to disclose their test results but, in any event, our view is that as non-disclosure of positive test results clearly puts patients and staff at risk, explicit consent of the individual is not required.
Note that from 28 September:-
- Workers have an obligation to tell their employer that they are self-isolating BUT only if they due to work anywhere else then the place that they are isolating within the isolation period (i.e. anywhere but at home).
- Employers must not knowingly require or encourage someone who is being required to self-isolate to come into the workplace. So if an employer knows a worker has tested positive (or lives with someone who has tested positive), it is now responsible for stopping the worker from working (unless they can work from home). Any employer who fails to do so will face a fine, starting at £1,000.
- Any individual who breaches self-isolation will, normally, commit a criminal offence.
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. Our view is that there is an element of proportionality to the question of what is reasonable dependent on the availability of other staffing resources and the individual’s current role and their skills and expertise will also be relevant. Trusts should only move to take formal action for refusal to move where the instruction is reasonable.
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.
NHS employers should take into account the NHS England/NHS Improvement guidance of 13 April, "Deploying our people safely".
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 and to the Health Education England paper on facilitating workforce planning published on 15 April to address issues arising out of COVID-19.
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.
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?
On 27 March, temporary guidelines were published for employers to follow when completing pre-employment checks during the pandemic. NHS Employers has published the new temporary guidelines which will apply when it is not reasonably practicable to complete the standard NHS Employment Check Standards.
The guidance confirms that for the purpose of verifying identity, right to work and obtaining DBS checks, employers may accept scanned and emailed copies of original documentary evidence in relation but only when making urgent appointments and it is not reasonably possible to follow the normal checking guidelines. The applicant must present the original versions of these documents to the employer as soon as is practical.
Regarding the new fast track DBS process, checks against the children’s and/or adults’ barred lists will be turned around within 24 hours of DBS receiving the application. The new fast-track check may be used where accepting pre-disclosed information, or where a new DBS check is needed to enable individuals to start work or volunteering in a regulated activity until the full disclosure has been received.
What about former NHS staff who are willing to return to frontline duties?
The Coronavirus Act 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. Details of the arrangements for returning staff can be found on the NHS England/NHS Improvement website.
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.
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.
How do the new carry over provisions work?
Under the new regulations which have been introduced, employees will be able to carry over 20 days’ annual leave provided by the Working Time Directive (WTD) into the following two leave years. In the UK, the Working Time Regulations (WTR) grant an additional eight days’ leave so as to provide a total of 28 days’ annual leave each year. The additional eight statutory days are not covered by the new regulations and must, therefore, be taken in the leave year in which they fall. There is no scope to pay in lieu of this leave, save on termination of employment. Any additional contractual leave can be dealt with in accordance with the employer’s policy or by agreement, for example deferral or payment in lieu.
Ideally, it should be made clear to employees that in each leave year they are taking their eight days’ WTR leave first, followed by their WTD leave and then any contractual entitlement.
Can we require employees to take annual leave at certain times during the pandemic?
Yes, if they are still working, subject to anything in your own contracts or policies, employers can require employees to take their annual leave, provided they give them sufficient notice (normally two days’ notice for each day of leave they wish them to take).
However, if the employee is on sick leave (whether this due to COVID-19 or any other illness), although employers can request that employees take their annual leave, it will not be possible to “force” them to interrupt a period of sick leave with holiday if they do not wish to do so.
The position is more complicated in respect of employees who are unable to work because they are self-isolating or shielding, as although they are entitled to SSP (even if they are not actually in receipt of it – for example, NHS staff on COVID-19 special leave), they are not unable to work because they are ill. Accordingly, there is a good argument that the employer can still direct when they should take annual leave.
There are risks in relation to discrimination claims if employers seek to force those who are shielding to take annual leave. This is on the basis that those who are shielding are more likely to be older and/or disabled. There is, therefore, a risk they would argue that they are adversely impacted by the policy of requiring shielding employees to take annual leave on account of their age/disability. This could amount to indirect discrimination, or a failure to make a reasonable adjustment in the case of disability (not requiring them to take leave at a specified time). In those circumstances, it would be important for the employer to be able to justify the approach as a proportionate means of achieving a legitimate aim (i.e. have a very good reason for it).
Some employers have asked those who are shielding to work from home. Where they are doing so, they will not be on sick leave or special leave and will be working as usual and can, therefore, be required to take their annual leave.
On 13 May the Government published new guidance on holiday entitlement and pay during COVID-19 where it confirmed that, generally, employers remain able to require workers to take annual leave to ensure that holiday is taken in the leave year to which it relates.
See also the NHS Staff Council guidance on annual leave during COVID-19, published on 21 July 2020.
Can we ask employees to work on public holidays?
This will depend on the terms of the individual’s contract of employment.
For NHS staff who are employed under AfC, section 2.1 refers to staff being required to work “on general public holidays” and section 13.4 of AfC states: “Staff required to work … on a general public holiday are entitled to equivalent time off…”. On the basis of these sections, there is, therefore, a good argument that NHS organisations have the power to require staff to work on bank holidays (at enhanced rates) and for that leave to then be taken at another time. This will be subject to the organisation’s standard contract/annual leave policy which may differ and those employees on non-AfC contracts may also have different provisions.
Our view is that persuading employees to work public holidays by agreement is the best approach. As much notice as possible of the need to work through the bank holidays should be given in order to ensure compliance with WTR around notice for “cancelling” leave.
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.
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 reimbursed 80% of workers’ wage costs, up to a maximum of £2,500 per month, where employers designate those employees as furloughed. The scheme ran in this form until the end of July and, is currently being wound down before it closes on 31 October, on the basis that employers share the cost of the scheme with HMRC. For further information on the CJRS and furloughing, please access our separate FAQ document here.
Can public sector employers furlough staff?
Although the scheme is available to public sector organisations, the Government expects that few public sector organisations will furlough employees as the majority of their staff will be providing essential public services or contributing to the response to the Covid-19 outbreak. Furthermore, where organisations are receiving public funding for staff costs (including non-public sector organisations), they are not expected to furlough staff.
Even after redeployment has been considered, some public sector organisations may find that some workers are less busy but the CJRS does appear to make clear that HMRC would be reluctant to approve a claim by a public sector organisation. For now, such organisations should continue to review their workforce arrangements as part of the response to Covid-19. In the case of casual workers, they should be assured that there may be shifts available at some point where they could be needed, albeit it may be in slightly different types of roles. For NHS organisations, casual workers may be able to pick up shifts with NHS 111.
In any event, it is no longer possible to place an employee on furlough unless that employee was on furlough prior to 10 June.
What are the details of the new Job Support Scheme? How can we claim?
On 22 September, the Government announced that a new Job Support Scheme would take effect from 1 November 2020, when the CJRS comes to an end. The JSS “is designed to protect viable jobs in businesses who are facing lower demand over the winter months due to Covid-19, to help keep their employees attached to the workforce. The company will continue to pay its employee for time worked, but the burden of hours not worked will be split between the employer and the Government (through wage support) and the employee (through a wage reduction), and the employee will keep their job.”
Disciplinary and grievance issues
ACAS has published new guidance which sets out best practice on handling disciplinary and grievance proceedings during the coronavirus crisis. This guidance is found here.
For NHS employers, NHS Resolution has produced guidance on doctors’ disciplinary processes under MHPS during the Covid-19 pandemic. The guidance suggest that employers need to take a pragmatic approach, continue to deal with urgent concerns, conclude investigations quickly where they are reaching the end, and postpone or extend the timeframe in the case of those which are not close to completion. Employers should also consider the impact of exclusion/restriction, weighing up the effect on the doctor’s practice and the demands of the service.
The guidance can be found 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.
Can we take disciplinary action when staff are refusing to work without full PPE?
Organisations will need to carefully consider how they deal with concerns raised in respect of inadequate or insufficient PPE. The Government published guidance on the use of PPE on 3 April which can be found here.
The steps an employer takes in response to staff who refuse to treat Covid-19 patients will depend on their role and whether it is one which requires full PPE. It would generally not be reasonable to discipline or dismiss staff for refusal to provide direct care to Covid-19 patients if they do not have access to the full recommended PPE and carrying out the treatment would place them at a high risk of contracting the virus. However, where staff do not require PPE in accordance with the PPE Guidance and such staff are refusing to work, organisations may wish to consider engaging and explaining that disciplinary action may need to be taken where they continue to refuse work.
What about staff who are refusing to wear PPE?
Employers can insist on PPE being worn as a reasonable management instruction, provided there are reasonable grounds for doing so. Where staff are refusing to wear PPE against the PHE Guidance, employers may elect to tell such staff that they cannot let them work in high risk areas for health and safety reasons and should then move them to a different area with the appropriate PPE.
Should BAME staff be given priority access to PPE?
Public Health England was asked by DHSC to investigate the disproportionately high number of BAME individuals who are affected by COVID-19. The report was published in August 2020 and found that COVID-19 has a disproportionate impact upon those BAME groups. NHS England has therefore classified BAME staff as a vulnerable group and advised that employers should risk-assess BAME staff and staff at potentially greater risk and make appropriate arrangements accordingly. NHS Employers guidance now classifies BAME staff as a vulnerable group for the purposes of risk assessments in the same way as older or pregnant workers or those who have an underlying health condition. Where a work environment demands that full fit PPE should be worn under the PHE guidance, our view is that in line with an employer’s health and safety obligations, no member of staff should be asked to carry out duties without it. Where there is a shortage of PPE, this will therefore impact on the number of staff available to attend rather than requiring a decision to be made as to priority for allocation.
NHS Employers has updated its guidance on risk assessments to include the importance of ethnicity. The updated guidance is found here.
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 were listed to commence on or before Friday 26 June 2020 would 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 applied to any hearing that was 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 was to 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.
The Presidents of the Employment Tribunals issued the following "roadmap" on 1 June 2020 regarding ET hearings going forwards. A summary of what is envisaged in the next few months is:
- June 2020: It is unlikely that any in person hearings will take place. The ETs will continue to focus on remotely conducted case management hearings, judicial mediations and ( rare) priority hearings. During this month the regional Employment Judges will be reviewing their lists to consider what cases would be suitable to be heard using CVP - we assume this to be from July onwards but the document does not make this clear;
- July & August 2020:
- ETs will seek to determine unfair dismissal cases in greater numbers using CVP.
- To the extent that social distancing measures operate in tribunal venues that have been properly risk assessed, some in-person hearings will begin, and these are likely to begin with straightforward cases such as wages claims or preliminary hearings.
- There will be some hearings involving several participants. These are likely to take place on a hybrid basis with some of those involved attending in person and others attending remotely using the in-house Cloud Video Platform (CVP) or other technology.
- It is unlikely that many complex cases e.g. discrimination or whistleblowing claims will be heard in July and August.
- September & October 2020:
- From mid-September and into October, Employment Tribunals will, in addition to the types of cases considered during July and August, seek to determine more complex cases in greater numbers using CVP, especially those cases of shorter duration.
- The range of approaches available will include wholly in-person hearings (likely still to be relatively few due to social distancing measures), hybrid in-person/CVP hearings, or hearings taking place wholly using CVP.
On 14 September 2020, the President of the Employment Tribunals issued further guidance upon remote and in-person hearings and in response to the significant backlog of claims cause by COVID-19, the Government introduced new legislation on 17 September 2020 to streamline Employment Tribunal processes and allow more flexibility. The majority of these changes will come into effect on 8 October 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 for the past few months and are likely to have to do so again over the winter months to cope with the predicted COVID-19 "second wave". However, there remains an expectation that staff are not wholly neglected, particularly as, since the initial lockdown, Courts and Tribunals have now improved and increased their capacity for virtual hearings and are progressing and hearing cases using a combination of virtual, hybrid and in-person means. Employers can, and should, now take steps to progress their employment relations (ER) cases virtually if they cannot safely do so on a face to face basis.
It will therefore be important to keep affected staff abreast of any developments and keep their cases under review, particularly if staff are currently suspended.
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, (f) terms and conditions and (g) assurance (for example, in relation to recruitment and indemnities). The resource page can be accessed here.
We have also produced detailed legally privileged Advice Notes for employers on the management of
- COVID-19 Health and Safety issues and risks, and
Please contact us for further details.
If you have any questions regarding these issues please contact Nicola Green or Sarah Parkinson.