FAQs: New guidance for NHS Employers on Covid-19 and the workforce

DHSC and NHS Employers have now confirmed the withdrawal of the staff terms and conditions section of COVID-19 workforce guidance.  This has been supplemented with:

• Staff Council Joint Guidance: COVID-19: Joint guidance | NHS Employers; and
• NHS Employers’ FAQs: COVID-19 FAQs: Staff required to stay away from the workplace | NHS Employers

We are receiving clarification queries from NHS organisations as to what these changes mean, particularly for NHS staff suffering from long-covid.  While the guidance may evolve, the key questions we are being asked and our interpretation are as follows:

1. Does the new guidance mean that from 1 September 2022 (following the notice period) Covid absence will count towards the normal absence triggers in the policy and it is acceptable to manage it in line with formal stages of the policy?

Yes, subject to the timings, which are:

• For anyone with new episodes of covid-19 after 7 July 2022, you can count any absences arising from those episodes of covid-19 towards the normal absence triggers in the policy and manage it in line with formal stages of the policy, from 7 July 2022 onwards.
• For anyone with a current and ongoing episode of covid-19 (such as long-covid) you can only count that episode towards absence triggers and manage it formally from 1 September 2022 onwards.  You should also meet them and give them notice that you will do this between 7 July and 3 August 2022.

2. Will staff who have been absent on a long-term basis due to covid still have their full entitlements to full and half sick pay?

Yes.  The guidance is clear that previous absences which were treated as covid-19 absence on full pay “should retain that status” rather than reducing the normal full and half sick pay entitlements.  Ongoing cases of long-covid will therefore revert to unreduced normal full and half sick pay entitlements from 1 September 2022.

3. Provided all steps in the policy have been followed, including consideration of redeployment and ill-health retirement, can the organisation proceed with dismissal on the grounds of ill health?

Our interpretation is that, yes, subject to the timings above, it should now be possible to work through your absence processes, which might ultimately lead to a dismissal.  This should be done sensitively, applying the various supportive guidance produced by NHS Employers and NHS England.  However, essentially, these staff would now be treated the same as other staff who are on long-term sickness absence and may be disabled (and subject to the same sensitivity and need to make reasonable adjustments).  However, you will need to make sure that any covid-related absence before 7 July, or before 1 September 2022 for ongoing episodes are not counted towards these processes.

In relation to ill-health retirement, it is worth noting that there has been a recent Scottish Employment Tribunal case Burke v Turning Point Scotland which held that long-Covid was a disability.  This is an issue for ill health early retirement cases because consideration needs to be given to whether individuals will either be able to do their own jobs again or indeed any jobs, so if the individual is considered disabled, that test is more likely to be met.

4. Are we now in the position to remove Covid related special leave and isolation leave from our absence recording processes? 

Although pay arrangements will revert to normal contractual terms, the guidance notes that sickness absence due to covid should be recorded “using the occupational sick pay scheme in ESR, ensuring the COVID-19 related reason is selected. For further detail please refer to ESR’s user notice (UN3179).” 

5. What should we be communicating and to whom?

The guidance recommends that:

• All staff need to be made aware of the changes that took effect from 7 July 2022 – i.e. that any new episodes of covid-related absence will be subject to normal contractual terms;
• Staff currently absent due to covid, including those suffering long-covid should:
  • Have a one-to-one meeting by 3 August 2022 with a trade union representative if they wish.
  • Receive written notice by 4 August 2022 of the fact that the treatment of their notice will revert to normal contractual terms on 1 September.

If you would like to discuss this topic in more detail, please contact:

• Alastair Currie, Partner
• Jodie Sinclair, Senior Partner
• James Gutteridge, Senior Associate