COVID-19: Workforce FAQs23/09/21
The Covid-19 pandemic continues to pose significant workforce issues for public service organisations regarding the services they provide and the risks to staff. On 8 March, the Government commenced step 1 of their four stage "roadmap" out of lockdown. Stage 4 commenced on 19 July 2021. On 14 September, the Government announced details of their "winter plan". Details of the current restrictions can be found here.
We list below the most frequently asked questions (FAQs) we have received in relation to the pandemic 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 COVID-19 symptoms (a continuous cough or high temperature or a loss of (or change to) sense of smell) to self-isolate immediately and arrange to do a COVID-19 PCR test. If they test positive, they must isolate for a minimum 10 day period (starting with the first day they became unwell).
Where you are living with; are a close contact of; or, in a support bubble with; someone who is displaying symptoms, you do not have to self-isolate if any of the following apply:-
- you're fully vaccinated
- you're below the age of 18 years and 6 months
- you've taken part in or are currently part of an approved COVID-19 vaccine trial
- you're not able to get vaccinated for medical reasons.
If none of the above apply, then you and the rest of your household/support bubble should self-isolate for a period of 10 days. If you or another person in the household starts to display symptoms during that 10 day period, this will not restart the 10 day period but that person will be required to start a second 10 day self-isolation period from the date on which they first display symptoms. Those who have no symptoms but who test positive for COVID-19 must immediately self-isolate for 10 days from the date of the positive test.
Note: In the small number of situations where the self-isolation of close contacts would result in serious disruption to critical services, a limited number of named workers may be able to leave self-isolation under specific controls for the purpose of undertaking critical work only. Further information can be found in the guidance for employers. NHS employers can allow fully vaccinated frontline NHS and social care staff to attend work during a self-isolation period in exceptional circumstances. For further details see the updated guidance from Public Health England and the letter from NHS England to NHS employers on the approach to staff isolation.
Are those in isolation entitled to sick pay?
Employers will be aware that at the start of the pandemic the Government introduced emergency legislation so that statutory sick pay (SSP) is payable to those who are self-isolating on advice from NHS 111 or PHE, as they will be deemed unable to work. SSP is also payable to those who are self-isolating as part of the track and trace regime and to those who have been identified as clinically extremely vulnerable (CEV) and advised to shield (although this will not currently apply as shielding has been paused since 31 March 2021 (for full details of the latest guidance applicable to those who are CEV, see Government guidance and, for NHS organisations, the NHS Employers Guidance).
Employers with fewer than 250 employees are 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 2020.
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. These provisions were applied retrospectively from 13 March 2020.
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 does 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 can 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 published on 3 September 2020 still applies and confirms that any sickness absence related to COVID-19 must be recorded separately as COVID-19 special leave and should not be counted for the purposes of any sickness absence triggers or sickness management policies. However, it is understood that the guidance was aimed at the infectuous period only and is likely to be subject to further review. In the meantime, the NHS Staff Council joint guidance (published on 1 July 2021) sets out the ‘bespoke’ or individually tailored approach NHS employers will need to apply to the management of long term COVID-19 absences to support staff during their absence and return to work.
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 (although this is only available in certain circumstances - see below), employers will need to be flexible about whether they allow them to remain at home or whether they 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 pandemic, 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 of 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 government and the FCDO’s advice remains that non-essential travel to a country identified as a red listed country or territory should be avoided. Can we refuse to authorise a request for annual leave that is being taken in order to travel to a red list country?
New rules on international travel will apply from 4am on 4 October 2021. The most up to date information on international travel restrictions, quarantine and testing requirements can be found here.
Employers can restrict when employees take holiday under Regulation 15 of the Working Time Regulations 1998. Employers may seek to use this power to restrict employees taking holiday for as long as the travel, testing and quarantine restrictions remain in place and/or to apply a restriction on taking holidays in red or amber list countries as opposed to in the UK. However, a “blanket ban” is likely to prove unpopular with staff and could risk indirect discrimination claims (i.e. those with relatives living abroad are likely to be at a disadvantage because they cannot visit family) that can only be successfully defended if the employer can show that the policy was a proportionate means of achieving a legitimate aim.
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 travel restrictions / quarantine measures were announced, or where the rules have changed since their booking, and who cannot obtain a refund or claim on their insurance.
For NHS staff, employers should refer to the NHS Staff Council’s updated quarantine guidance (published on 16 August 2021), which updates the initial guidance for NHS employers.
There is a quarantine period of ten days for individuals arriving into the UK from red list countries. How should we treat employees who are on a period of enforced quarantine? Are they entitled to SSP?
New rules on international travel will apply from 4am on 4 October 2021. The most up to date information on international travel restrictions, quarantine and testing requirements can be found here.
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, or where the rules have changed since their booking, and who cannot obtain a refund or claim on their insurance.
For NHS staff, the current guidance for NHS employers (last updated on 13 May 2021) still states that staff in quarantine should be treated as self-isolating on COVID special leave and so entitled to full pay. However, it is understood that this guidance was aimed at those caught overseas at the beginning of the pandemic when everything locked down, not for subsequent lockdowns when the risk of traveling overseas became known, so it is likely to be subject to further review. We therefore recommend that NHS employers refer to the more recent NHS Staff Council’s updated quarantine guidance published on 16 August 2021 to update the initial guidance for NHS employers (which does not list COVID-19 special leave / pay as an option that can be applied to the quarantine period) on the basis that this is the most up to date and reflects the current situation.
Do any exemptions to the current travel /quarantine restrictions apply to international recruitment?
The exemption from quarantine for registered health or care professionals travelling to the UK to provide essential healthcare was removed on 30 July 2020.
For the NHS, international recruits can still enter the UK from red list countries with their entry clearance / workers visa or their pre or settled status. However, they will need to complete a mandatory 10-day self-isolate period in a government-approved facility, and they cannot use the test to release scheme.
NHS nurses arriving from red list countries will be exempt from mandated hotel quarantine if suitable NHS trust provided travel and accommodation can be arranged. However, the exemption only applies to NHS nurses coming from or travelling through red-list countries to take up immediate NHS employment in England. This does not apply to family members, or dependents, or other occupation codes, who will have to use the Managed Quarantine Service. The exemption does not cover nurses already employed by the NHS or nurses returning from abroad for other reasons (for example, holiday or visiting family).
NHS employers can find further details here.
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.
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, the current guidance for NHS employers (last updated on 13 May 2021) 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).
However, it is understood that this guidance was aimed at those caught overseas at the beginning of the pandemic when everything locked down, not for subsequent lockdowns when the risk of traveling overseas became known, so it is likely to be subject to further review. Although the more recent NHS Staff Council’s updated quarantine guidance (published on 16 August 2021 to update the initial guidance for NHS employers) does not specifically cover staff stuck overseas, it would be reasonable for NHS employers to take it into account when making decisions on pay in individual cases on the basis that this is the most up to date and reflects the current situation.
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. 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.
Note: In the small number of situations where the self-isolation of close contacts would result in serious disruption to critical services, a limited number of named workers may be able to leave self-isolation under specific controls for the purpose of undertaking critical work only. Further information can be found in the guidance for employers. NHS employers can allow fully vaccinated frontline NHS and social care staff to attend work during a self-isolation period in exceptional circumstances. For further details see the updated guidance from Public Health England and the letter from NHS England to NHS employers on the new staff isolation approach.
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.
Attending the Workplace
The most up to date Government guidance on the Coronavirus restrictions setting out what people should or shouldn’t do was updated on 14 September 2021. In relation to attending work, since 19 July 2021, the Government has no longer been instructing people to work from home if they can. Since then, an increasing number of workers have gradually returned, or are preparing to return, to offices and workplaces.
The shielding programme has now ended in England. This means that people who were previously considered clinically extremely vulnerable (CEV) are not to be advised to shield in the future or follow specific national guidance, but are advised to continue taking extra precautions (see Guidance for people previously considered clinically extremely vulnerable from COVID-19).
Following the Government’s recovery strategy which was published on 11 May 2020 where the reopening of certain workplaces was set out, the Government published guidance on returning to work. The guidance and is split into fourteen categories covering separate workplace settings. The guidance is being regularly updated - link to most up to date version here.
The guides help businesses understand how to keep their businesses safe whilst the new local restriction tier system was in place. They 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.
On 11 September 2020, "priority actions to take - what businesses need to do to protect staff and customers" were added to the guidance on working safely during coronavirus. These were updated on 14 July 2021:
- Complete a COVID-19 risk assessment (in consultation with workers and trade unions) and share it with all staff.
- Provide adequate ventilation by keeping doors and windows open where possible and running ventilation systems.
- Clean more often (especially high touch surfaces and require staff and visitors to wash their hands frequently and use hand sanitiser)
- Turn people with coronavirus symptoms away.
- Enable people to ‘check in’ (but note that there is no requirement to ask people to check in or turn them away if they don’t wish to do so).
- Communicate and train workers and visitors on how you’re using and updating safety measures.
NHS Employers has also published a link to new return to work guidelines from the Society of Occupational Medicine, produced in collaboration with the University of Glasgow. The guidelines are aimed at workers, employers and health practitioners to increase understanding of the risks of returning to work and the appropriate work-related control measures that could be implemented. The document also includes an appendix on worker rehabilitation and occupational health advice for employees who are suffering from long COVID.
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).
That said, the Government has set out that during step 4 “health and care settings will continue to maintain appropriate infection prevention and control processes as necessary” to protect patients and service users from the risk of infection. Therefore, health and social care organisations can insist that masks are worn and social distancing is adhered to in any care setting. This is the position NHS England have taken in their announcement on 15 July 2021 that “NHS staff, patients and visitors will also be expected to continue to follow social distancing rules when visiting any care setting as well as using face coverings, mask and other personal protection equipment”.
Subject to the outcome of any risk assessment, wearing a face covering is now optional for staff in most workplaces, albeit that their use is “encouraged" in enclosed and crowded spaces. Employers should remind employees that should they chose to wear one, and they will have to adhere to the usual rules regarding hand washing and social distancing.
What about staff who are clinically vulnerable for example because of age, pregnancy or an underlying health condition?
Employers should note that even if an employee is not deemed CEV, they may meet the definition of clinically vulnerable (CV) 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.
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. There may be some roles where they could continue to work remotely, 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).
The HSE has updated their guidance for employers on protecting vulnerable workers (including pregnant workers) – see here.
For NHS organisations, there is updated guidance from NHS Employers on protecting staff in clinically vulnerable groups.
All pregnant workers should have a risk assessment that considers their individual circumstances, underlying health conditions and the risks of their employment setting, alongside the latest clinical advice from the Royal College of Obstetricians and Gynaecologists (available here and here). If risks are identified, then control measures must be put in place to remove the risks so that the pregnant worker can continue to work (for example, by altering working conditions, hours of work or by providing suitable alternative work on the same terms and conditions), or, if this is not possible, then they must be suspended on full pay (or placed on COVID-19 special leave if employed in the NHS).
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 in circumstances where a risk assessment demonstrates that you cannot reduce risk sufficiently, 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, employers who are not publicly funded may be able to furlough the employee under the Coronavirus Job Retention Scheme (although, this will not be possible from 1 October 2021 as the scheme is due to end on 30 September 2021). Alternatively, you can require employees to take annual leave, subject to the notice requirements in the Working Time Regulations (“WTR”) or agree some form of special leave or career break. If employees are 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 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 consulted on and any adjustments agreed and implemented. Ultimately, however, it is not legally possible to enter into an agreement that excludes liability for personal injury of prosecution for health and safety offences.
Can we require staff to be tested for COVID-19?
COVID-19 tests are now widely available and routine use being highly recommended. Identifying and isolating positive cases to limit transmission through testing is also a key part of the Government’s “winter plan”. In view this, and an organisation's health and safety obligations to staff and service users, it is likely to be a reasonable management instruction to require staff to undergo testing, although consent will be required. Where staff are refusing to work and are refusing to be tested, then this could be treated as unauthorised absence, although employers should be clear on an employee's reasons for refusal. Organisations may consider commencing disciplinary action but we recommend that they look at alternative options, for example home working, redeployment, taking some form of leave, or furloughing where available to employers before taking disciplinary action.
In the unlikely event that 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.
Note that from 28 September 2020:-
- 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 legally required to self-isolate to come into the workplace. So if an employer knows a worker has tested positive (or lives with someone or is a close contact of someone who has tested positive and the worker is unvaccinated / not medically exempt from vaccination), 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.
- However, in the small number of situations where the self-isolation of close contacts would result in serious disruption to critical services, a limited number of named workers may be able to leave self-isolation under specific controls for the purpose of undertaking critical work only. Further information can be found in the guidance for employers. NHS employers will be able to allow fully vaccinated frontline NHS and social care staff to attend work during a self-isolation period in exceptional circumstances. For further details see the updated guidance from Public Health England and the letter from NHS England to NHS employers on the new staff isolation approach.
Can we require staff to be vaccinated? How should we deal with a staff member who refuses to be vaccinated?
This is a complex question which requires consideration of the individual’s role and place of work. In the first instance, staff should be strongly encouraged to be vaccinated and we recommend that employers engage with staff to understand any concerns and reasons for objections with a view to bringing them on board with the vaccination process.
Employers should also note that from 11 November 2021 all persons working or deployed in a CQC registered care home (which provides accommodation together with nursing or personal care) in England must be fully vaccinated against COVID-19, unless an exemption applies. The scope of the new rules mean that they will not just impact upon care home providers and care home staff: they apply to anyone working or deployed in a care home, unless an exemption applies. This is regardless of role, how often the individual works in the care home, or, who employs them. The latest guidance for NHS employers can be found here.
In addition, on 9 September 2021, the Department of Health and Social Care (DHSC) published a consultation on whether the mandatory COVID-19 vaccination requirements should be extended to other health and care settings. The proposed requirements would apply to frontline health and care workers, that is, those with face-to-face contact with patients as part of delivery of CQC-regulated activity. The consultation closes on 22 October 2021.
For more detailed advice on mandatory vaccination and the implications for employers, please contact us.
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 1 May 2020, "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, with their agreement, 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 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 2020 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 2020, temporary guidelines were published for employers to follow when completing pre-employment checks during the pandemic. On 22 October, further supplementary guidance was added in relation to eligible roles, to provide further clarification around the free-of-charge enhanced DBS checks and emergency checks of the Barred Lists. 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.
The temporary measures for right to work checks were due to end on 31 August 2021, but on 26 August, they were extended to 5 April 2022. From 6 April 2022, employers must revert to obtaining original right to work documents and conducting face-to-face checks or use the Home Office online service and an individual’s sharing code. The amendments to the NHS check standards permitting verification via video of identity and DBS checks will remain in place.
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.
What about nurses qualified overseas?
The NMC has reopened its temporary register to allow trained nurses who are currently in the UK and preparing to sit their OSCE to opt in and join. Directors of nursing will have been contacted by the Chief Nursing Officer to inform them of what they need to do if they wish to bring on board an overseas nurse.
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, 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.
On 13 May 2020 the Government published new guidance on holiday entitlement and pay during COVID-19 which confirms 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 (first published on 21 July 2020 and re-issued on 29 January 2021).
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.
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. See advice above regarding CEV staff. See the upated HSE guidance for employers on protecting vulnerable workers (including pregnant workers) here, and the updated guidance from NHS Employers on protecting staff in clinically vulnerable groups.
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?
The Coronavirus Job Retention Scheme (CJRS) was first introduced during the first lockdown period, but was being wound down and due to close on 31 October. It has been extended on several occasions and the Chancellor announced on 17 December that the scheme will remain open until 30 September 2021 and is open to employees who have not been furloughed before. Given the introduction of the third lockdown period in January 2021, it is possible that the scheme will be extended still further.
Under the extended scheme, HMRC will reimburse 80% of worker’s wage costs, up to a maximum of £2,500 per month, for the period 1 November 2020 to 30 June 2021, where employers designate those employees as furloughed. The amount of wages costs that employers can claim for July 2021 will be reduced to 70% or a maximum of £2,187.50, and for the period 1 August - 30 September 2021, there will be further reduction to 60% or a maximum of £1,875 per month.
For further information on the CJRS and furloughing, please access our separate FAQ document here.
Can public sector employers furlough staff?
Although the extended scheme is available to public sector organisations, the Government expects that few public sector organisations will use the scheme 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 policy paper published on 5 November 2020 does appear to make clear that HMRC would be reluctant to approve a claim by a public sector organisation, unless they are only partially publicly funded and their private revenue streams have been disrupted. 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.
Disciplinary and grievance issues
ACAS has published guidance (last revised on 1 April 2021) 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 suggests 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 2020 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
How will ET hearings be conducted as we move out of lockdown?
On 31 March 2021 the Presidents of the Employment Tribunals in England and Wales and in Scotland published a new ‘road map’ for employment tribunal proceedings in 2021/22. The roadmap confirms that the majority of hearings will continue to be conducted remotely, and sets out the default position for cases yet to be listed:
- preliminary hearings listed in private for case management purposes will default to telephone or video
- preliminary hearings in public to determine a preliminary issue (e.g. time limits, employment status) will default to video
- preliminary hearings to consider an application to strike out or for a deposit order will default to video
- applications for interim relief will default to video
- judicial mediations will default to telephone or video
- final hearings of short track claims (unpaid wages, notice, holiday pay, redundancy pay etc) will default to video
- final hearings of standard track claims (unfair dismissal) will vary, depending on the backlog of cases in each region
- final hearings of open track claims (discrimination and whistleblowing) will also vary. In most parts of Britain, they will default to in-person; however in London and the South East, where the backlog is most severe, parties should expect to see greater reliance on video, including hybrid formats
- other hearings listed specifically to deal with applications for reconsideration or costs/expenses will default to video.
Employment tribunal claim figures (published quarterly) for 2020 were at their highest since 2013-14 as unemployment increased and working conditions changed during the Coronavirus (COVID-19) lockdown. The number of claims received and the number of cases being concluded are significantly higher than the same period in 2019. The most recent figures (January-March 2021) published on 10 June 2021 show a decrease of 19% in receipts, a decrease of 21% in disposals, with the caseload outstanding having increased by 5% (compared to the same period in 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 to cope with the COVID-19 "third 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,
- Wellbeing, and,
- COVID-19 vaccinations in care homes
Please contact us for further details.
If you have any questions regarding these issues please contact Nicola Green or Gemma Taylor.