COVID-19 – Common Employment Issues for the Care and Supported Living Sectors

Frequently Asked Questions

Providers of residential or domiciliary care services or supported living arrangements (including homelessness) are encountering very different work force issues than other sectors.  While many employers are quickly making use of the Coronavirus Job Retention Scheme (CJRS) to support staff they have had to lay off at short notice, care providers are, in the most part, faced with the opposite issue. 

Here are some frequently asked questions in this sector at the moment from a HR and employment law perspective (many of which will also be applicable to other healthcare providers):

Can we move staff to different sites to cover staff shortages?

Provided that you have an employment contract that provides for this flexibility then you can ask staff to work at a different location - within reason.  You will still need to consider travel distance and transport provision from the care worker’s home address and if the new location is a greater distance possibly offer transport and consider whether to pay for travel time.

If the contract does not allow for such flexibility then you can only move them to different locations by agreement.

We have been told that one of our staff members has received a letter telling them they need to ‘shield’ and so cannot attend work.  Do I still need to pay them?

The NHS sent out 1.5 million such letters to certain categories of people who due to medication and/or health conditions have been told to ‘shield’ for 12 weeks, which essentially means not leaving their house.  You cannot expect these people to attend work but for leave purposes they are not technically sick and so do not qualify for statutory sick pay (at least not unless the government intervene).

There have been suggestions that the furlough scheme could be used for such employees but at the moment this remains unclear.  It is not yet entirely clear whether the employer can decide when to ‘furlough’ someone (i.e. pay them 80% and claim that back through the CJRS) or if there needs to be a reduction in the need for the job, similar to a redundancy situation.  The earlier guidance was based on the premise that the CJRS was to support employers who could not offer work to their staff due to the effects of coronavirus on their business.  The most recent guidance released on 26 March does not mention this as a specific requirement.

Therefore, employers who wish to furlough those who are shielding can certainly do so if there is a reduction in the need for their job role as well; however, if the job is clearly still needed and the employer can pay the salary, the risk is that, when the HMRC portal opens later in April for employers to make their claims for salary, the claim could be rejected.  HMRC have also said that they will have the right to review claims made retrospectively by auditing employers to claw back any claims made fraudulently or on erroneous grounds. 

Once the portal is released and the questions asked by HMRC are known, the position will hopefully become clearer.

In the meantime employers will have to determine their policy to deal with such workers and may have to put in place interim measures until the situation is clear.

One of my employees has refused to come to work on ‘health and safety’ grounds; can we dismiss them for refusing to work?

You first need to understand the reason for the refusal – is the person in one of the vulnerable groups of do they live with someone who is vulnerable?  If they have justification for raising a health and safety complaint and refuse to come into work, then they would be protected from dismissal – even if they have less than 2 years’ service.

Employers need to find a way of agreeing terms of leave (possibly unpaid) and avoid dismissals that could be automatically unfair. 

Some employees have raised the protection at section 44 of the Employment Rights Act 1996 which provides for paid leave for employees who refuse to go into work until the employer can agree to ensure a safe place of work.  Advice ought to taken by employers for whom this issue arises as the application of this section will be subjective depending on the specifics of each individual scenario.

I need staff to be more flexible than normal in shift patterns, so can I change the employee’s regular shift pattern during this time?

It is common in the care and supported housing sector for hours of work in to be expressed in contracts in weekly hours to be worked across a shift rota system.  Provided that your contracts reflect this then there will be some flexibility for changing shift patterns. 

Difficulties may arise if you are seeking to place those who work daytime shifts (normally termed ‘early or late’ shifts) on to waking night shifts (or vice-versa) and so if you can maintain sufficient flexibly without compromising that distinction then that would be a better approach.

Also changing shift patterns may effect child care arrangements for some and so any notice you can give on flexibility needed will help mitigate such difficulties. 

If the hours of work in the contract are specific and the contract does not allow for flexibility, then you would have to obtain agreement and consent to change shift patterns – which is more likely achievable in the current crisis, especially where you give assurances that the person can revert to their contractual shift pattern after the crisis has abated.

Given staff shortages (caused by staff who have to self-isolate or are off for other reasons) we need flexibility in terms of job role – can I ask staff to cover different roles to cover such shortages?

All written contracts should have a job title and this will be accompanied by a separate job description which often includes a contractual right to amend the job description.  This will allow some flexibility but it would still have to be consistent with the scope of what you would reasonably associate with the job title.

It is unlikely that you could force someone to work in an entirely different role than that which is in their contract and so any obvious changes to the job would have to be by agreement.

For more information on the article above please contact Stephen Moore