Podcast: COVID-19 – Advice for NHS employers

This is our second FAQ article aiming to address COVID-19 issues specific to our NHS clients. The FAQs are set out in the article below, but we have also recorded a podcast, in which we discuss some of the issues in more detail:

Comprehensive advice and guidance on all other COVID-19 related issues is available on the coronavirus hub section of our website.

What is the latest advice to NHS clients regarding employees who are shielding (Clinically Extremely Vulnerable (CEV))?

CEV individuals are still advised to limit time spent away from home and to maintain strict social distancing (SD) when leaving home, which continues to limit the work which CEV employees can perform.

Regarding work, the guidance for CEV employees is to ‘discuss and agree options with [their] employer’. 

Our current advice is for employers to undertake (or review) individual risk assessments with each CEV employee, to ascertain what duties the employee may now be capable of providing. Issues to consider include:

1. Assess the employee’s vulnerability - Are they correctly categorised as CEV? There are now various categories of employee’s identified as being at an increased risk from COVID-19, but only a small number of these employees are CEV and advised to shield, which has caused some confusion amongst employees.
2. If employees are identified as CEV and there remains doubt about the employee’s ability to work, can they obtain a view from a treating clinician which confirms they are safe to work or additional risk is minimal?
3. Some employees may be prepared to self-certify that they are able to return to work, despite having received a letter confirming they are CEV. In such cases, the reason for the employee’s view should be fully discussed with the employee, properly recorded in writing and the employer should factor this information into the risk assessment, before proceeding. However, the employer’s duty to take reasonable steps to protect employees’ health and safety always remains in place and should be at the forefront of employer’s minds when carrying out this exercise.
4. Some employers are considering asking employees to sign waivers confirming they are fit to work. Such waivers will not remove employer health and safety responsibilities and cannot remove liability for negligently caused injury/death. There may be cases where an employee’s acknowledgment of the position and risk is appropriate, but it cannot amount to an effective legal waiver.    

Having considered the individual employee, employers should also assess the role. Can the role be performed from home, in a SD manner, or in a way which does not jeopardise employee health? Employers may now need to give more detailed consideration to finding new ways for CEV employees to perform their roles.

If there are no duties that a CEV employee can perform, as a last resort employees should remain at home on paid leave, in accordance with current national guidance.

Which other staff groups have increased vulnerability and what should we be doing for these staff groups?

As mentioned above, there are now various groups of staff who have been identified at increased risk from COVID-19, including:

1. BAME staff
2. Pregnant staff, particularly those in advanced stages of pregnancy (beyond 28 weeks)
3. Staff who have underlying health conditions, so are Clinically Vulnerable (CV) (but fall outside the CEV group). This group includes staff who are, for example, over 70, significantly overweight or have diabetes 

Gender is also an indicator of being more seriously affected by the virus, so should also be considered, particularly if one or more of the above factors is present.

NHS trusts should ensure that all staff at increased risk have been risk assessed and appropriate measures put in place.

At present, the advice remains that pregnant staff beyond 28 weeks’ gestation, should be permitted to work from home. The latest advice to those in the CV group is to stay at home as much as possible and limit contact with other people.

The approach taken with each of these categories of employee will vary on a case by case basis and it would be potentially unlawful discrimination to apply a blanket policy to all employees falling within any one of these at risk groups.

In addition, given that the threat posed by COVID-19 is changing over time and government advice is evolving, employers will need to keep this issue under review and react to the current level of risk. The approach may also vary on a regional basis.

More detailed guidance relating to employee risk assessment, and employee health and wellbeing generally, is available in our latest HR Horizon newsletter. In addition, there are detailed materials regarding risk assessment, including risk assessment tools on the NHS Employers website.

What about employees who are not ill, but merely worried about being deployed onto specific duties?

NHS trusts are still advised to consult such employees regarding the reason for their concerns and seek to resolve these concerns as far as possible. It is worth taking time to provide detailed information in discussion with an employee in this position and trying to get to the heart of the problem, because the alternative options open to the employer carry significant risk.

Some additional reassurance or an adjustment to duty which can be tolerated, could allow the employee to return to work and is very likely to be the best solution to the problem.

What if the employee cannot be persuaded to resume their duties?

If employees remain unwilling to work, trusts may consider placing employees on a period of unpaid leave or, as a last resort, disciplinary action.

Before doing this, trusts will need to be confident they have provided employees with adequate training, supervision and, where necessary, PPE. However, there are a number of specific risks associated with such a course of action, given the implications for staff health and safety.

Employees expressing concerns about working in the COVID-19 environment may be deemed to be making a public interest disclosure (whistleblowing) and/or raising a health and safety concern. Such employees should not be subject to detriment or dismissed for raising such a concern.

In addition, employees who can show that they refused to work in circumstances where they reasonably believed there was a serious and imminent danger at the workplace, are also protected from detriment/dismissal as a result of refusing to work.

It is important that trusts explain to employees who are concerned, the steps that have been taken to reduce risk and why the trust does not consider any residual risk to be significant.

In addition to these claims, the usual causes of action will also exist. Should an employer take action to stop pay, a deduction from wages claim and/or a constructive dismissal claim, may follow. In addition, if an employer dismisses an employee for failure to follow a management instruction, an unfair dismissal claim may be brought.

What can trusts be doing to progress disciplinary and grievance issues?

Disciplinary/grievance investigations should in most cases be capable of being completed via a series of video conference interviews with witnesses.

The employer and employee could try to reach agreement regarding the outcome of the case, perhaps with the assistance of a TU rep? Employers will need to be careful about how they handle such conversations, to avoid pre-judging cases.

Some difficulty may arise in respect of disciplinary hearings with multiple people present. Trusts should consider if they have facilities to conduct such hearings in a SD way. For example, is there a large and well ventilated, but private meeting room?

If not, can the hearing be conducted by video conference? Or can there be a combination of the two?

If any departure from normal process is undertaken, trusts will need to ensure that the employee receives a fair hearing and the principles of natural justice can be followed.

Grievances may be easier to resolve, depending upon the nature of the grievance and the terms of Trust Policies. There may be no requirement for a hearing, involving the attendance of ‘management side’. If attendees at a grievance hearing are limited, it will be easier to conduct the meeting virtually.

What about doctor cases?

PPA have published a guidance document on MHPS cases, suggesting trusts try to conclude investigations wherever possible and agree outcomes/sanctions with employees once the investigation is concluded.

However, PPA suggest that some case are likely to be placed on hold for several months. These cases are typically those where investigations are only part complete, cases where hearings are required and cases where PPA intervention is required (e.g. capability cases).

Read the guidance. 

Finally, what is happening with Employment Tribunal (ET) cases?

The ET has very recently updated their guidance as to how cases will be progressed. ETs are now looking to conduct full hearings again.

The ET will try to conduct in person hearings in a SD manner or using technology known as ‘cloud video platform’ or will adopt a hybrid approach to hearings. CVP can be accessed via MS teams or skype for business.
Cases that currently have a hearing listed in 2020 will proceed as follows.

Hearings in July/August 2020 – some small claims, such as basic unfair dismissal claims, unpaid wages claims, etc. will go ahead. Multi-day discrimination cases are unlikely to be heard in this period, so, if currently listed, are likely to be postponed.

Hearings in September/October 2020 – ET will start to hear more complex cases, such as multi-day discrimination cases, so any cases currently listed in this period, may well go ahead.

It will be a judicial decision as to whether a virtual hearing should take place, so any objection to a hearing via technology will not necessarily be successful.