Staffing COVID-19 ‘Hot Sites’ – the legal ‘dos and do nots’

Employment lawyer James Howell outlines the key legal issues practices need to consider in staffing ‘hot hubs’ or ‘hot zones’

In England, it has been for GP practices to decide, in collaboration with others in the locality, whether they want to operate a ‘hot hub’ model during the Covid-19 pandemic. NHS England have stated that practices are contractually obliged to staff Covid-19 hot hubs where these are being used; and should do so with existing resources in the first instance.

If it later transpires that additional capacity has been needed, then a claim to the Covid-19 support fund can be made for reimbursement of any excess.

Staffing decisions

If opting to operate a hot and cold hub model, then a decision needs to be taken around which staff members work where. This should involve practices and their staff members as well as the PCN, CCG, NHSE and any other stakeholders. Redeploying both management and clinical staff to new arrangements under this model is expected to be part of the ‘quid pro quo’ of guaranteeing income to practices.

There are a number of duties and obligations that a GP practice will need to have in mind when establishing or contributing resources to a hot hub, whether that involves sending staff to another site or having staff from another GP practice on its own site.

Health and safety duties

Every GP practice has a duty to take reasonable care of the mental and physical health and safety of all employees. This duty arises in tort, under statute (as a result of the Health and Safety at Work etc Act 1974), and is an implied term of the employment contract. The practice must also take reasonable steps to provide a safe workplace and a safe system of work. A practice is not obliged to do everything within its power to prevent injury, but it must take reasonable precautionary steps.

Duty to provide a suitable working environment

The practice must provide, and monitor so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by the employees of their contractual duties. The duty is broader than the health and safety duty.

Where an employee is relocated temporarily to a hot hub, the employer practice will still need to comply with these obligations and in order to do so should undertake a risk assessment on the hot hub site, in the same way as it should on its own premises.

The important take out here is that the employer of a staff member redeployed under the hub model is still responsible for the health and safety of that employee. Having said this, those running the hub will also share some of this responsibility at this point in time and will have a duty of care to the staff member delivering the service. It is important for all GP practices operating this model to therefore know their own position on this.

Changing job roles and/or location

Where the hot hub is located at a premises other than the employee’s usual place of work, consideration will need to be given to the practice’s right to require the employee to work at the hot hub site.

The employment contract is likely to include a clause which sets out the employee’s place of work. As a general principle in law, an employment contract may only be amended in accordance with its terms or with the agreement of the employee. Regarding the first of these, a specific flexibility clause relating to where the employee works (known as a mobility clause) might be contained in the contract. However, whilst it might be relied on, such a clause is given a restrictive interpretation by courts and tribunals, and the implied terms of an employment contract, such as trust and confidence, may curtail the operation of such an express flexibility clause.

The best solution here is for practices to work with staff members and have an open dialogue. Additional risk factors will also need to be considered when allocating staff members between hot and cold sites.

A practice cannot redeploy an employee against their will. Any decision taken regarding changes to where an employee works, or the role that they carry out during the Covid-19 pandemic is expected to be clinically led and flexible. The employee should have the opportunity and platform to consult their manager and express any concerns immediately. Collaboration and documentation are key.

Can an employee refuse to work at a hot hub on health and safety grounds?

It is possible that dismissal of an employee who refused to attend work due to a belief that they will be at risk of contracting Covid-19 would be unfair. Section 100(1)(d) of the Employment Rights Act 1996 protects employees from dismissal on the grounds of absence from work if that absence was due to a reasonable belief that attending work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger).

The concept of danger has been interpreted broadly. It could include the risk of contracting Covid-19 from an infected colleague or patient, although the danger would need to be reasonably believed to be serious and imminent. The employee does not need to demonstrate that such a danger actually existed. The question for the tribunal is whether they reasonably believed that attending work would put them in danger. This underlines the importance of effective communication with employees in terms of the measures taken by the practice to minimise the risk.

Where a practice does not protect an employee’s health and safety, or treats them detrimentally in response to a complaint about health and safety, the employee may be in a position to resign and claim constructive dismissal, depending on the circumstance.

James Howell is an employment lawyer and MD of MS Rubric, partner law firm of Moore Scarrott Healthcare, nationwide specialist medical accountants