Employment Law Advice

Welcome to our frequently asked questions (FAQs) page on Employment Law. Here you will find the latest advice and guidelines for healthcare professionals working during the current Covid-19 pandemic

This is an exceptionally difficult and rapidly evolving situation and we wish to reassure members that the MDDUS stands ready to assist, advise and support our members. Members should ensure they remain aware of the latest guidance from the relevant government and health departments and follow those guidelines.

  • 1. As practices are reopening and staff are returning to work, can we ask them to work while they remain on furlough leave?

    With the extension of the Furlough scheme until the end of April, employers will be able to bring staff back on a flexible basis, allowing them to work some days of the week while being furloughed for the others.

    Practices will be able to claim for the hours not worked under the Government scheme.

    Members are still able to place employees on flexible furlough arrangements for any amount of time or shift pattern and can be used more than once.

    Practices should discuss any new working arrangements with staff and seek detailed written agreement, which should be retained for five years.

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  • 2. What is the current situation regarding the furlough scheme?

    The current furlough scheme has been extended until the end of April. The Government will contribute 80% of the employees usual salary up to a maximum of £2,500 per month and the employers will be required to pay NI and pension contributions for unworked hours. The hours can be topped up to full pay if the employer wishes.

    Dental practices will be able to claim whether or not they have previously used the scheme. However, it is still the case that the Government expects publicly funded businesses not to use the scheme but practices may still be able to claim for private business.

    Members can claim for employees who were employed by 30th October 2020. Employees do not need to have been furloughed before and there is no limit on the numbers of employees that can be placed on the scheme.

    Members are still able to place employees on flexible furlough arrangements for any amount of time or shift pattern and can be used more than once.

    Whilst on furlough, employees cannot do any work that makes money or provides a service for the employer but the employee can take part in training, volunteer for another company or work for another company.

    The furlough scheme is not intended to be used for those on short term sick absence but those shielding or with caring responsibilities can be placed on furlough.

    Any plans to place an employee on furlough should be discussed with staff member and agreement gained. The agreement should be in writing and be kept five years and the employer should also keep records of how many hours the employees work and the number of hours they are furloughed for six years.

    As under the previous CJRS, grants cannot be used to substitute redundancy payments.

    For claim periods starting on or after 1 December 2020, employers are unable to use the furlough scheme for those employees on their notice period. The grant can also not be claimed for employees on unpaid leave or sabbatical between 1 November 2020 and 31 January 2021.

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  • 3. What about employees taking annual leave at this time?

    The rules relating to the carrying forward of annual leave were extended in 2020 in response to the coronavirus outbreak.

    The statutory four weeks provided for under the EU Working Time Directive can be carried forward and taken in the two leave years immediately following the year in respect of which it was due where it was "not reasonably practicable" to have taken it as a result of the effects of coronavirus.

    The guidance now confirms that employees are able to take annual leave during a period of furlough. If an employee is on a period of annual leave, they should be paid their normal full time pay for this time, with the practice able to claim back 80%.

    Employers are also able to require employees to take a period of holiday by giving them double the difference in notice, so 10 days’ notice is required for a five day holiday period.

    ACAS has issued some helpful guidance around annual leave here: https://www.acas.org.
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  • 4. What do I pay an employee if they are off work with the coronavirus or if they are self-isolating due to a household member having symptoms?

    The practice’s usual sick leave and pay entitlements apply if an employee is off sick with a diagnosis or symptoms of coronavirus.

    If someone in the household has symptoms, everyone in that household must self-isolate for 14 days. Employers might offer more than statutory sick pay (SSP) and provide contractual sick pay, but this is a decision for them to make. 

    Staff should be reminded to alert the manager as soon as possible if they’re not able to come to work under the practice’s normal absence reporting policy. 

    Note that the government has announced SSP is to be paid from day one for those who are absent due to COVID-19, rather than day four and practices can claim back two weeks SSP.

    Be aware these employees may be unable to promptly provide a sick note/fit note if required to self-isolate for 14 days (employees are not required to self-certify for the first seven days).

    Those self-isolating due to coronavirus for more than seven days can get an online self-isolation note from the NHS website and NHS mobile phone app (see link below).

    NHS website
    NHS mobile phone app

    Further guidance can be found here: https://www.nhs.uk/conditions/coronavirus-covid-19/self-isolation-advice/

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  • 5. What if an employee refuses to come to work due to the coronavirus or I have an employee who is in a vulnerable category?

    Some employees may not be ill, but may not wish to come to work through fear of contracting coronavirus. If an employee refuses to come to work then the employer needs to speak with the person to see if there is a genuine concern.

    Discuss any concerns with the employee and try to reach a mutually acceptable arrangement. Although not always practicable in clinical practice, one option could be to offer flexible working or working from home. The employee could be allowed to take a period of holiday or unpaid leave but the practice does not have to agree to this. Be clear that if an employee refuses to attend work without good reason, this could result in disciplinary action.

    Employees in the vulnerable category (including individuals aged over 70, women who are pregnant and individuals with an underlying health condition) are recognised as being at increased risk of severe illness from coronavirus.

    There is an additional sub-category of “extremely vulnerable” people (including those who have had organ transplants / are having certain types of cancer treatment / have blood or bone marrow cancer / have a severe lung condition / have a condition or are taking medicine that makes them much more likely to get infections / are pregnant and have a serious heart condition) who are advised to take extra steps to avoid contracting coronavirus by “shielding”. Employees in the “extremely vulnerable” category are likely to have been issued with an “at risk” letter to their home address by the NHS.

    Please click here for further information: https://www.nhs.uk/conditions/coronavirus-covid-19/advice-for-people-at-high-risk/

    While there is no blanket ban on such individuals attending work (should they choose to do so), the Government has issued guidance about stringent social distancing and shielding for these clinically extremely vulnerable groups and both guidance from the BMA and the BDA advise that these people should not see patients face to face.

    It should be considered if these employees could be permitted to work from home where possible and the employer should take all reasonable steps to facilitate that, which could include incurring cost (for example for remote working equipment or licences). Where they are working from home, pay will continue as normal. If the employer fails to take reasonable steps to allow home working, arguably normal pay should be paid until such steps are taken.

    Where an employee could work from home but refuses to do so without good reason that may justify withholding pay entirely.

    Of course there are some jobs that simply cannot be done remotely, and the question arises as to whether vulnerable staff staying at home per government advice should receive full pay, sick pay, or no pay.

    For staff that are shielding, SSP is paid as a minimum and the practice can choose to enhance this to contractual sick pay at their discretion as long as it is consistently applied across all employees. Employees who are shielding can also be placed on furlough leave.

    Recent notification from medical health boards have advised that staff should be paid their normal pay during 12 weeks shielding period.

    Further advice can be ascertained from your own local health board if this change may affect your practice. Close
  • 6. What should I do to minimise the risk to employees?

    Send information and guidance to staff informing them of any actions being taken to reduce risks of exposure in the workplace. This should highlight relevant guidance from Government/the NHS on appropriate use of Personal Protective Equipment (where necessary), as well as the importance of hand-washing and of disposing of used tissues etc.

    The BDA have issued guidance regarding how to help staff return to work and what the practice should consider.
     
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  • 7. How do I know if my employees are classed as key workers for childcare purposes?

    The guidance below sets out what childcare and learning provision we expect to be made available to key workers during closures of school and day care of children, including early learning and childcare (ELC), services to deal with the coronavirus outbreak. 

    It is clear that healthcare workers in a medical or dental setting will be considered to be key workers under the following guidance. 

    UK Government:  “Health and social care

    This includes but is not limited to doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers; the support and specialist staff required to maintain the UK’s health and social care sector; those working as part of the health and social care supply chain, including producers and distributers of medicines and medical and personal protective equipment.”

    Scottish Government:  

    Category 1Health and Care workers directly supporting COVID response, and associated staff; Health and Care workers supporting life threatening emergency work, as well as critical primary and community care provision; Energy suppliers (small numbers identified as top priority already); staff providing childcare/learning for other category 1 staff.

    Category 2 All other Health and Care workers, and wider public sector workers providing emergency/critical welfare services (e.g Fire, Police, Prisons, Social Workers, etc), as well as those supporting our Critical National Infrastructure, without whom serious damage to the welfare of the people of Scotland could be caused.”

    Further guidance can be accessed here:

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  • 8. What happens if an employee tells me that their child’s school has closed and they need to look after them?

    Employees are entitled to unpaid time off work to help someone who depends on them in an unexpected event or emergency (Emergency Time off For Dependants Leave). This would apply to situations relating to coronavirus, such as if they have children they need to look after or arrange childcare for because their school has closed. Having said that, the government has asked schools and other childcare providers to continue to provide spaces for the children of key workers.  Now schools are closed, local authorities will seek to make a place available to the children of key workers at “hub” school identified for this purpose.  Employees should therefore be asked to speak to their child’s own school or to the local authority before a decision is taken on allowing unpaid leave for childcare purposes.  

    If an employee still requests time off for childcare despite these provisions, there's no statutory right to pay for this time off, but some employers might offer pay depending on the contract or practice policy or a period of annual leave.

    The amount of time off an employee takes to look after someone must be reasonable for the situation. 

    In a dental setting, employees may be able to be furloughed due to childcare issues but we suggest you take case-specific advice on this from an MDDUS employment law adviser.

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  • 9. What is emergency statutory volunteer leave?

    The Coronavirus Act 2020 introduces a new statutory right for workers to take emergency volunteering leave to help support essential health and social care services.

    Employees and workers who have been certified by an appropriate authority to act as an emergency volunteer will be able to take unpaid leave in blocks of two, three or four weeks. 

    To take the leave workers must:-

    • Give three working days' notice
    • Produce a certificate from the appropriate authority confirming they have been approved and will be acting as an emergency volunteer for the period specified in the certificate.

     

    A UK wide compensation scheme is to be set up to compensate volunteers for loss of earnings, travel and subsistence. Workers will remain bound by terms and conditions of employment (except those relating to pay) and there will be a statutory right to return to their job. Employers are not able to refuse unpaid leave to an employee who wishes to carry out volunteer work unless they have less than 10 staff. There is, however, nothing to prevent an employer with a headcount of less than 10 staff agreeing to such a request and it is worth bearing in mind that furloughed employees can take part in volunteer work.

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  • 10. What advice can you give me if I have to make my staff redundant?

    The Job Retention scheme is in place to try and avoid this situation and redundancies should only be considered as a last resort where the employer is not eligible for the scheme or if redundancies are an unavoidable outcome.

    Employees who have less than two years’ service are not entitled to redundancy pay and if you have to reduce staff then potentially looking at employees who have less than two years’ service may be a sensible starting point. Any decision to terminate must not take into account any protected categories as part of the Equality Act 2010, regardless of time served.

    If you have employees who have two years’ service or more then there is a legal process of consultation and selection that requires to be followed.

    Employees with two or more years’ service are entitled to statutory redundancy payments. It is important to check your contracts with regards to any entitlement to additional redundancy pay.

    Statutory redundancy pay depends on the employee’s age and length of service as follows:

    • Half a week’s pay for each complete year of employment below the age of 22
    •  A full week’s pay for each complete year of employment between the ages of 22 and 40
    • A week and a half’s pay for each complete year of employment above the age of 41

     

    Statutory redundancy pay can be given for a maximum of 20 years' employment with only full years of service taken into account.

    If you require further assistance on redundancy please contact an employment law adviser at MDDUS on 0333 043 4444 or email advice@mddus.com.

     

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  • 11. What obligations are in place for the employer and employee in terms of self isolation?

    It is an offence for an employer to knowingly permit an employee to attend any place other than where the individual is self-isolating. This law applies to England only however the Scottish Government is promoting the same advice. This includes individuals who are required to self-isolate because they live with someone who has tested positive. So if an employer knows an employee has tested positive (or lives with someone who has tested positive), it is now responsible for stopping the employee from working (unless they can work from home). Any employer who fails to do so will face a fine, starting at £1,000.

    There is also an obligation on the employee to tell their employer that they are self-isolating. 

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  • 12. What is the new Job Support Scheme?

    It was recently announced that the Coronavirus Job Retention Scheme (CJRS) or the ‘Furlough Scheme’ will now be extended until 31 March 2021.

    The scheme will revert back to employees receiving 80% of their usual salary for hours not worked, up to a maximum of £2,500 per month. Until January, the employer is not required to contribute to the wages other than National Insurance contributions and minimum auto enrolment pension contributions. It is likely that this percentage rate will be reviewed for February and March 2021. Employers can top up an employee's to 100%, but there is no obligation to do so.

    It is still the case that public bodies are unable to use the scheme. For those dental members who do private work, there may be an opportunity to use the scheme for any private work lost.

    The scheme remains flexible so any hours worked by the employee will be paid by the practice as normal. It is for the practice and the employee to agree terms and the best practice would be to negotiate a new written agreement.

    Details of the scheme include:

    • Employers can use the scheme for employees who have not been furloughed before. For these employees, they need to have been on the payroll on 30 October 2020.
    • The minimum claim period is seven calendar days.
    • For those employees who have been previously furloughed, the same reference period for pay and hours will be used.
    • For those being placed on the scheme from November 2020, pay calculations are likely to be based on 80% of the wages payable in the last pay period ending on or before 30 October 2020, or 80% of the average payable between the start date of their employment or 6 April 2020 (whichever is later) and the day before their CJRS extension furlough period begins.
    • Employees can be furloughed if they are shielding in line with public health guidance (or need to stay at home with someone who is shielding) but there is no obligation to do so.
    • Employees that were employed and on the payroll on 23 September 2020, who were made redundant or stopped working afterwards, can be re-employed and placed on furlough.

    The Government has also announced that it will scrap both the Job Support Scheme and the Job Retention Scheme Bonus. Instead, the Government will put in place an alternative retention incentive, details of which are not yet available. 


    To recap on the position about employees shielding: In England, the guidance is that those who are extremely vulnerable should stay at home. If they are unable to work from home, then they can be placed on SSP or furlough. In Scotland, Wales and Northern Ireland, there are no shielding measures in place.

    Details regarding the Extended Scheme can be found here.

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  • 13. If an employee needs to quarantine after a foreign holiday, do I have to pay them?

    If they are able to work from home for the isolation period (which is usually 14 days) then this may not have an impact on their employment and this is the ideal option for the least impact. However this is not always possible for all roles within a medical or dental practice and homeworking lends itself to some roles better than others. We have also had feedback that IT equipment is in short supply so this is an added hurdle. 

    You are able to ask your employees to use annual leave to cover the isolation period but if they don’t have sufficient leave then you may have to come to an agreement with the employee using unpaid leave. 

    Unless the employee is exhibiting coronavirus symptoms then we suggest that the use of statutory or contractual sick pay does not apply in this case. 

    Those employees who wish to travel to a country where there are quarantine laws to be followed on their return must get this period approved by the practice. As stated earlier, working from home is the best option here but if not possible then additional annual leave or unpaid leave must be applied for. It may not be practical to have an employee out the practice for an additional two weeks so you are in a position to decline an extended period of leave. You should ensure that your annual leave policy is updated and shared around staff so that they know to apply for the leave (including the isolation period) and ensure it is approved before booking any foreign trips. 
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