Healthcare Counsel’s Weekly Zoom
15 July 2020
This week we were delighted to be joined Jodie Sinclair, head of employment, pensions and immigration at Bevan Brittan. Jodie answered questions on some thorny issues regarding Covid and employment law. The following is a summary of the discussion setting out general principles. Providers should, however, seek legal advice in specific cases especially if considering disciplinary action.
Corridor countries and quarantine
At the time of writing, there are over 70 countries and territories on the UK’s exemption list. People arriving into the UK from those places do not need to isolate for 14 days if they have not travelled to any non-corridor countries within the last 14 days. The current list is available here.
Providers’ concerns include:
- Covid is a rapidly changing crisis. Countries currently on the list may soon be found to be unsafe, by which time residents and staff may be exposed risk.
- There remains uncertainty about how safe air travel is, especially as there is growing suspicion that Covid may be an airborne transmitted disease.
- Government guidance to care homes throughout the crisis has later proved to be misguided.
Employment law risks associated with requiring staff to quarantine when returning from corridor countries include:
- Employment law is not trumped by Covid considerations.
- Restrictions that go beyond government guidance – including requiring staff to take leave to cover a quarantine period for corridor countries – may not be regarded as reasonable management instructions and may be in breach of an employer’s duty to provide work, and the implied duty of trust and confidence.
- Refusing requests of staff to travel to non-corridor countries may constitute indirect discrimination as such requirements are more likely to affect those of a particular race or religion both of which are protected characteristics.
- Failure to pay for periods of quarantine may amount to unlawful deductions of wages.
Key considerations include:
- Staff are not entitled to SSP if they are fit to work and are returning from a corridor country.
- As with all difficult issues, engagement and communication is key.
- There are range of measures that could work if the employee agrees including unpaid leave and banking leave.
- Other practical solutions can include arranging rotas following leave that facilitates a quarantine period without reducing the number of hours staff work. Staff can also be asked to use the time after leave abroad to catch up on training.
- Depending on the needs of the business, providers may take the view that it is not currently practicable to grant leave requests due to the additional demands of Covid and the risk of using agency staff for cover.
- Providers may decide to impose a quarantine period for corridor countries and pay staff for special leave for that period.
- Providers making decisions based on health and safety obligations in respect of risk to residents and staff must be able to evidence an audit trail that includes engagement with staff, risk assessments and guidance at the time.
- Providers are advised to date stamp any government and other guidance relied on as it is changing at pace.
Providers concerns include:
- Some staff are resisting testing, possibly because staff are concerned that they will not be able to work following a positive result.
- Some providers have been told by employment law advisors provided by their indemnifiers that they cannot enforce testing.
- There are practical and legal practicalities about enforcing testing.
Key points include:
- Providers owe health and safety duties in respect of residents and staff, as well as further regulatory duties under the CQC regime and duties of care to staff and residents.
- Testing and PPE is a significant part of that equation. Whilst WHO guidance does not recommend employers test employees, the UK government has rolled out weekly testing for care home staff, based on the latest scientific evidence.
- There is unlikely to be any contractual provision about testing in current contracts.
- Asking staff to undergo testing is likely to be a reasonable management instruction.
- Speak with any individuals who decline testing to seek to understand their anxieties and explore if and how they can be managed.
- Advice should be sought if staff still refuse testing, as imposing a policy that staff are not allowed on site without testing could be regarded as a suspension. There may also be claims if it is alleged that the reason for a refusal is due to a disability (for example anxiety).
- Again, communication and engagement is important. Explain the health and safety obligations that underpin the request to test.
- A negotiated period of unpaid leave may be an option if the employee agrees.
- Care should be taken that policies are not applied selectively, as that could lead to discrimination claims.
- Test results are special category personal data. Accordingly, providers must consider the GDPR implications. See my earlier post on this here.
- Future contracts can include a requirement to follow instructions relating to infection control measures.
Staff, including shielding staff, who are nervous about returning to work.
- Shielding staff will be entitled to SSP until 1/8.
- For staff with a disability, there is a duty to provide reasonable adjustments.
- Accordingly, providers need to consider whether a staff member has a disability, and if so, what adjustments can be made.
- Medical suspension may be an option, but advice should be sought. There are special provisions in respect of pregnancies.
- As above, consideration should be given to any work that can be done from home (or that is not hands on) such as training or paperwork.
- In principle, an employee who is fit to work but refuses to work could be subject to disciplinary action.
- However, again there is a risk of a discrimination claim.
- As always, engagement and communication is key.
- That includes consulting on risk assessments in respect of returnees.
- Providers considering disciplinary action should seek advice.
Please let me know if there are any other topics you’d like covered in future Zooms – email@example.com