COVID-19: employment law advice for NHS trusts

This guidance is intended to address NHS specific issues only and will be revised as matters develop.

Workforce flexibility

The NHS needs to create additional capacity within the existing workforce.  Measures under consideration include:

• Asking staff to work additional shifts/overtime
• Asking staff to postpone annual leave
• Redeploying nonclinical staff onto other duties
• Redeploying clinical staff into different specialisms
• Increasing clinical activity for clinicians and requesting reduced private practice/SPA time

What are the legal implications?

Varying duties

Ultimately, the employer may wish to instruct staff when and where they will be deployed. However, in order to support that final step, you should consider your existing powers and attempt to reach an agreement.   

The first step is to check the employment contract. Most employment contracts and/or terms and conditions of service contain a degree of flexibility, which an employer can rely upon in times of crisis. If such provisions are included, you can vary the employee’s duties, relying upon the relevant term of the contract.

For example, model consultant contracts, specialty doctor/associate specialist contracts and junior doctor contracts all contain provisions requiring the doctor to work with the trust in a spirit of ‘mutual trust and confidence’. Each of these contracts also contains a provision stating that the doctor’s duties may be varied in times of emergency (clause 5.1), so clinicians can be redeployed, if necessary.

Additional working hours and flexibility are not prescribed in the national contract and there may be local provisions or agreements as to this and some statements of employment particulars may already have provisions for exceptional changes in emergency situations.  

Similar flexibility is likely to exist within local contracts and agreements. If the flexibility required is beyond the current terms of the contract, a temporary consensual variation should be sought. It is hoped this will be readily agreed by employees and staff side representatives. Once agreed, it is good practice for the variation to be confirmed in writing, but this does not need to be particularly formal because it is temporary.          

Whether or not consent is required to vary the contract, it will be important to keep in mind implied contractual terms, as well as the written contracts of employment.  In particular, the requirement to take reasonable steps to safeguard an employee’s health, safety and welfare at work. 

Practically speaking, employers will need to consider the following:

• Appropriate systems and equipment
• If adequate training has been provided to all staff, particularly those who may be requested to operate outside of their usual role
• Assurance regarding the application of the Clinical Negligence Scheme for Trusts (CNST) may be required     

Employees are only obliged to follow lawful and reasonable instructions. Therefore, even if the variation to duties sought falls within the terms of the contract, employee are not obliged to undertake new duties, if a safe system of work cannot be offered.     

Working extra hours

Employers should check their contracts of employment. While the various model doctor contracts do not expressly deal with this issue, it is extremely likely that the terms provide the flexibility to require additional hours to be worked if necessary, in the interests of the service. As above, similar provisions are likely to exist within senior manager contracts and for staff on AfC terms, local provisions or agreements should be reviewed, to check whether they contain the necessary flexibility.

When exercising discretion to require staff to work extra hours, there will again be a requirement for employers to act in accordance with the implied contractual terms relating to employees’ health, safety and welfare.  

The Working Time Regulations (WTR) may be a consideration if employees are required to work additional hours over a prolonged period, although we hope employers will not find this a significant issue. Working hours should not exceed an average of 48 per week and are typically calculated over a rolling 17-week reference period, to ensure employees remain compliant. We would advise that employers seek to agree with staff side representatives that the reference period should be extended to 26 weeks, or even 52 weeks, to allow staff to be able to work significant additional hours over the coming weeks, should that be necessary, with the aim of allowing staff to work fewer hours than normal over the summer months, once the peak period of activity has passed.  

Some employees will be excluded from the scope of the WTR in any event, such as junior doctors and very senior executives. 

We would advise that employers attempt to keep records of all additional hours worked. 

Finally, some provisions of the WTR will not apply during this emergency situation, such as provisions regarding night work, daily rest, weekly rest and rest breaks.    

Pension

In light of the recent changes to taxation and the benefits that exist under the scheme some may seek to rejoin and this should be facilitated swiftly.

Consultant private practice/SPA time/Junior doctor rotation

The consultant terms and conditions of service do require a consultant to ensure that, by working in private practice, there is no detriment to NHS patients and the service to NHS patients is not diminished. It could be suggested to consultants that they should temporarily cease private sessions, in order to meet the emergency need for suitably qualified clinicians in the NHS, provided that they can do so without breaching any contractual or other obligation owed to a private patient or hospital. 

Equally, consultants could be asked to reduce SPA time and any other non-essential components of job plans, for a temporary period.

Again, it is likely that these issues would fall within the emergency variation clause appearing in the consultant contract at clause 5.1.      

In addition, we understand that HEE has proposed the postponement of junior doctor rotations, in order to retain, for the next few months, juniors who have become experienced in areas that are likely to see high demand. Again, this is likely to be permissible, using the flexibility contained within the applicable contract. 

Finally, it is likely to assist consultants in particular, if they are reassured that these changes are temporary and they will be able to revert to their original job plan once the crisis is over. 

Annual leave

Under the WTR, an employer can give appropriate notice to an employee (equivalent to the period of leave due to be taken), to require the employee to forego a period of annual leave and take it on another occasion. However, employers should bear in mind that this may not be a popular move, so should be handled sensitively. Employers should also check their local annual leave policies for any terms relating to this issue.

The next major holiday period is Easter, in early April. On a practical note, given the current ban on any unnecessary travel, it may be unlikely that employees are able, or would choose to, take a holiday at this time even if they could obtain the time off work. In those circumstances, employers may find that employees are willing to cancel Easter holidays, particularly as schools are due to remain open for key workers. Summer holidays may present more of a challenge.

Finally, as we prepare to send this article, the government has just announced that workers in key industries will be able to carry over, for a period of up to two years, up to four weeks annual leave entitlement, if they are unable to take their full entitlement in the current leave year, as a result of the COVID-19 pandemic. Further information is awaited on this latest development.

General

Employers may also have emergency planning/business continuity policies which contain information relevant to handling staffing issues in these highly unusual circumstances.  

Can we vary usual practice in relation to disciplinary and grievance issues, to free up the time of clinical staff and other key workers?

Disciplinary/grievance procedures undertaken by NHS organisations are typically, very comprehensive. Accordingly, it is very likely that some relaxation to the usual process will be possible, while still maintaining a fair process. Any proposed variation to usual process should be assessed on a case-by-case basis. It would be preferable to agree any variation with staff side/the employee, but if agreement cannot be reached, it may be possible to impose change, given the extreme nature of the current situation. Reasonable variations to usual disciplinary policy may include:

• Postpone disciplinary/grievance hearings
• Agree outcome of case with employee/representative, without a hearing  
• Remove requirement for clinicians to be involved
• Conduct hearings by video conference or other technological means, provided you are able to conduct a fair hearing

You are advised to review your schedules of ongoing disciplinary/grievance cases and identify whether any cases can be resolved in a swift and pragmatic way and whether any variation to process could be implemented, which would shorten/vary the process and release valuable resources.

Employers are also advised to consider any other non-essential internal procedures that they could postpone, such as appraisals, annual reviews, probationary reviews, etc.   

We may recruit recently retired staff, students or volunteers to help cope with workload, any issues there? 

The government has encouraged NHS trusts to employ recently retired staff, students and volunteers and sought to remove any barriers to enable this. This will no doubt provide welcome additional capacity, but there are still legal implications for NHS trusts.

If staff are undertaking clinical duties, NHS Resolution has indicated that seconded and temporary staff will be covered by the CNST, but staff will obviously require the necessary competence, training and supervision.    

For employees undertaking a retire and return, the usual rules regarding break in service and restrictions on working hours have been relaxed.  

However, it is important to bear in mind that volunteers do have some employment related or worker rights, even if they are not being paid. Accordingly, it will be important to enter an appropriate form of contract with each temporary employee/volunteer who will be engaged in the fight against COVID-19.  

In order to assist the NHS to recruit volunteers the government has created, via the Coronavirus Act 2020, a new right for employees to take Emergency Volunteering Leave (EVL) from their current employer, in order to volunteer with the NHS.  Employees can volunteer for a maximum period of four weeks in any 16-week period. The leave is unpaid, but the government will directly compensate any employee who volunteers. The level of compensation has not yet been set and it is currently unclear how EVL interacts with the government’s recently announced Furlough Leave scheme. Further, there is, as yet, no date for the commencement of the right to take EVL, but we hope that further clarification on this issue will be forthcoming in the next few days.    

Finally, employers should consider whether the recruitment process can be truncated in any way. The Coronavirus Act provides that employers may employ staff while they await a DBS check, provided staff are adequately supervised.     

What about employees identified as falling within the high-risk group (eg, pregnant, over 70, specified health conditions, etc)?

NHS England and NHS Improvement (NHSE/I), in their letter dated 17 March 2020, recommended that these employees should, if possible, be deployed away from the front line, into lower risk areas or preferably onto remote working. 

However, if staff are remote working, there are still some issues to bear in mind, for example risk assessment of employee’s home working environment and GDPR issues, if employees are going to access (sensitive) personal data from home.  

Is there a requirement that staff should be clean shaven?

Employers may have seen reports in the media regarding the effectiveness of PPE, such as masks, if employees have a beard. Given a trust’s overriding duty to ensure the health, safety and welfare of its staff it will, in almost all cases, be reasonable to insist that staff who may be required to treat patients with the COVID-19 virus, be clean shaven. There is a possible exemption for employees who can say that a beard is a requirement of their religion. In those cases, employers should consider whether any alternative form of PPE is available and whether supplying an alternative form of PPE is proportionate.     

Do we need to be mindful of any whistleblowing issues?  

If concerns are raised regarding, for example, the effectiveness of equipment supplied to staff who are due to treat patients with the COVID-19 virus, such concerns are highly likely to amount to protected disclosures. Managers should be aware of this and ensure that any employee raising such an issue is not subjected to any detriment as a result.    

What is the latest on sick pay?       

Under the government’s statutory sick pay regime, employees are now regarded as being absent from work by reason of sickness absence if they are quarantined or self-isolating due to COVID-19, either because they have symptoms, because they live with someone who has symptoms, or because they are following the direction of a medical professional or government guidance

Further, the government has launched an online ‘isolation note’ service, intended to replace sick notes, for employees who are absent as a result of COVID-19. The service is accessed via the NHS website or NHS 111 online.

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.