Lawyer Linda Wylie outlines the legal implications of protecting staff on the frontline of managing the coronavirus pandemic
GP partners need to do all they can to protect staff during the Covid-19 pandemic. At the same time they must also protect themselves against potential legal action from staff over health and safety. This means ensuring a safe working environment and being crystal clear on matters such as sick pay.
An employer has both a common law and statutory duty to protect the health and safety of its staff, which means ensuring you do not place employees at unnecessary risk of infection.1
This is challenging when managing primary healthcare workers who are likely to come into direct contact with coronavirus patients. Start by identifying staff at particular risk of exposure and have a clear policy on coronavirus infection control measures and what will happen if, for example, an employee falls ill with symptoms, or a patient tests positive, to limit the infection risk to others. Have a person or team designated with updating staff on official guidance, developing best practice and disseminating this to staff. Hold regular briefings and encourage two-way communication.
You should urge employees who are at increased risk of severe illness from coronavirus to work from home, or make other adjustments to minimise their risk of exposure in the workplace.2,3
You must make reasonable adjustments for disabled employees, and that includes any adjustments that will reduce their risk of exposure to infection if they are in a high-risk group.
If you instruct an employee to work from home then they should receive full pay as usual. Check individual contracts allow you to require staff to work remotely.
If an employee has coronavirus symptoms, or otherwise meets government criteria for self-isolating, then they are classed as incapacitated under statutory sick pay (SSP) rules and should receive sick pay whether SSP or enhanced contractual sick pay applies.4 Note that SSP will now be paid from day one of absence, rather than day four. Any contractual requirement to provide medical evidence earlier than under SSP should be relaxed in the current circumstances and you should accept NHS 111 confirmation beyond one week as evidence in place a GP fit note.5
An employee in a high-risk group who cannot do their job safely at work, or work from home, would be entitled to SSP or enhanced sick pay if applicable.
You may have anxious employees who are reluctant to come to work even when you judge it is safe for them to do so. Encouraging staff not to come in if they feel ill will help to promote confidence among the rest of the staff that the workplace is safe.
Employees should be required to attend work as normal, however, unless there is a particular risk at the workplace – for example, in the event of the practice being closed due to contamination – or when travelling to work. Consider offering flexi-hours to help employees avoid peak commute times.
If an employee has been diagnosed with a mental health problem such as anxiety severe enough to be classed as a disability, you should make reasonable adjustments for them.
Some staff may want to come to work when they shouldn’t. Stress to employees who are reluctant to take sick leave that you have a statutory duty to provide a safe and healthy working environment for staff, and that their actions could leave you open to negligence claims from themselves or their colleagues.
If an employee has been off with suspected coronavirus, insist they get the all clear from their doctor before returning to work. At the time of writing the government plans to introduce testing of healthcare workers, and once implemented this should guide your return to work policy.
Some employees may need time off to care for dependants such as children, especially if schools are closed.4 This may affect women disproportionately and could lead to claims of indirect discrimination if female employees suffer a disadvantage, such as lost pay, compared with male colleagues and the employer cannot objectively justify its policy. Allow working from home and flexible working where possible to mitigate this risk.
Be mindful that exclusion of an employee from the workplace if they have returned from a high-risk country must be in line with Government guidance and must not discriminate on the basis of nationality.
Have a clear and transparent policy and do not rely on discretion alone when deciding on issues such as sick pay or adjustments, as this could risk actual or perceived discrimination and favouritism.
If the practice is forced to close, staff are entitled to full pay unless there is a ‘lay off’ provision in the employment contract. In the event of a long-term closure practices could require staff to take annual leave or, subject to prior agreement, time off on reduced pay or unpaid.
Keep all staff updated about the actions you are taking to reduce the risks of exposure and encourage them to follow the latest government guidance. Avoid imposing unilateral changes to employment contracts – aim to consult and agree on any changes with staff. That way you can protect your practice against legal claims and show staff that you take their welfare seriously.
Linda Wylie is a solicitor in Meade King’s employment and dispute resolution team who advises healthcare professionals on employment law and litigation.
1. Health and Social Care etc Act 1974. Section 2. General duties of employers to their employees
2. NHS England. Letter to NHS managers. 17.03.20
3. UK Government. Guidance to businesses and employers for Covid-19
4. UK Government. Coronavirus and claiming benefits.
5. Legraien, L. Government to roll out fit note alternative for coronavirus. Pulse, 11.03.20
Or, please register for a free trial to access all of the guides and unlock all features.