COVID-19 – How can Dental Practices Manage their Workforce?

The Chief Dental Officer issued advice to all NHS dental practices on Wednesday regarding the ongoing treatment of patients. Whilst these guidelines refer to NHS practices, in reality, all private practices will also want to consider their application.

What this means is that there will be less patients in practices moving forward, which will inevitably mean less work to do. This e-bulletin sets out the various options available to dental practices when considering the impact of COVID-19 on their workforce.

What if a member of staff is unwell?

This is the most straightforward situation. If a member of staff is unwell, they should be sent home immediately. In these circumstances they will be entitled to either the sick pay provisions contained within their contract, or if they are not entitled to contractual sick pay, they will be entitled to statutory sick pay (SSP). The Government have announced, but have not yet put into law, that the SSP will be payable from the first day (normally the 4^th) of their absence from work. They should then remain at home for at least 7 days from when their symptoms started.

What if someone in a staff member’s household is ill?

If your staff member lives with someone who becomes unwell, then the government guidelines state that they must stay at home and not leave the house for 14 days.

In these circumstances the staff member is eligible for statutory sick pay even if they are not ill themselves. This was bought into force by the Statutory Sick Pay (General) Coronavirus Amendment) Regulations 2020 on the 13^th March 2020.

The Government announced that businesses will be able to claim back any SSP paid from the State. However, the Government will only refund up to two weeks of SSP to businesses with less than 250 employees, albeit this has not yet been put into law

Employers do not need a sick note to claim this money back.

An employee decides not to attend work as they are classed as ‘vulnerable’, do I have to pay them?

The Government’s advice is that staff members should be ‘encouraged’ to work from home wherever possible. If it is possible for phones to be answered remotely, for example, then employees should be paid in the normal way. However, for dental practices this is rarely going to be possible.

Whilst practices may wish to exercise discretion and continue to pay staff, this is not currently a legal requirement.  The Government state that staff in these circumstances “should be supported;” they have not said how businesses will be supported in doing so, however. As they are not unwell, or isolating due to contact with a COVID-19 sufferer, they are not entitled to SSP.

However, the dental practice will need to carefully consider their obligations to protect the health and well being of a staff member. It would be considered unfair to dismiss an employee who chooses to self-isolate in these circumstances. A staff member who chooses to self-isolate because they are categorised as vulnerable is likely to be protected against dismissal (and deduction from wages) if they are asked to come into work and refuse to do so because there is a significant risk to their safety.

For those who are not classed at vulnerable, but chose not to attend, dental practices could offer unpaid leave, alternatively a good compromise would be to ask employees to take this as paid holiday.

I am worried about the safety of my staff, should I send them home?

Yes. Employers have a duty under the Health and Safety at Work etc Act 1974 (http://www.legislation.gov.uk/ukpga/1974/37)  to protect the health, safety and welfare of their workforce at work, as well as others who may be affected by their operations. Practice owners also have a common law duty to protect their workforce.

If an employee insists on coming to work despite exhibiting symptoms, or that they have been exposed to the virus, and the practice principal orders them to go home, they are technically entitled to full pay during this period as they are willing to work despite their ill health.

My nurse needs to take time off to look after her children as schools are closed, what do I do?

At the time of writing, it is not known whether dental providers are considered key workers, and as such their children will continue to be able to attend school.

An employee may be entitled to time off work if they:

• have a child they need to look after, or arrange childcare for, because their school has closed due to coronavirus, or

• need to help their child or another dependant if they are sick, or need to go into isolation or hospital

There is no statutory right to paid time off in these circumstances.

I no longer have sufficient work to occupy all of my staff members, what shall I do?

• Associate dentists are primarily self-employed, in which case they will have no rights to SSP. The Government announced that the self-employed will be entitled to Employment and Support Allowance (ESA). However, at just £73.10 per week this is unlikely to be of much assistance. Further, it is not possible to claim ESA if you have savings or investments of over £16,000.

Dental practices who have NHS contracts will have some assistance from the NHS. It being suggested that the global pandemic will be treated as a “Force Majeure” event, meaning neither dental practices nor dentists will be liable for a failure to complete UDAs under the contract. It is also anticipated that the NHS will provide some financial support to contract holders, which should in turn be passed through to Performers.

Unfortunately, there has been no support offered for private dentists or practices in the recent package of measures announced by the Chancellor, save some emergency loans.

• If you ask employees on fixed hour contracts to stay at home as you do not have work for them to do, then they will be entitled to receive their full pay and benefits during this time.

This is clearly a significant burden on all practices, and it is unlikely that practices will be able to sustain this for a significant amount of time. If this is unaffordable, dental practices will have to consider the following:

• Unpaid Leave: It is not possible to enforce unpaid leave on to staff members. This is an amendment to the contract and can only be done by agreement. Employees will have to very carefully consider what this will mean for them. Positives are that this will allow their continuity of employment to continue (this is important as they will accrue employment rights after two years and will be protected from unfair dismissal, entitled to redundancy payments etc). Negatives, of course, are that this will cause economic hardship and may affect their entitlement to certain benefits as they will not be actively seeking work.

• Lay off or short-time working: dental practices can only consider laying off employees or putting them on short-time working, where it has the contractual right to do so. Qualifying employees will be entitled to claim a statutory redundancy payment or a statutory guarantee payment from their employer.

• Redundancy: Unfortunately, many small businesses, including dental practices will need to consider making staff redundant should patient numbers fall significantly (as anticipated). For more information on the redundancy procedures to follow, you can read our earlier dental bulletin (http://jfhlaw.co.uk/need-downsize-staff-heres-part-1-redundancy/).

Many people are engaged on Zero Hour contracts within the dental services. If this is a genuine zero hour contract (i.e. there is no obligation upon the employee to do the work, and none on the employer to offer it) then the dental practice can simply not offer hours of work in the coming weeks. However, if staff members are obliged to attend work every week and are given the same, or similar hours every week, then the employee could argue that they have in fact got a guaranteed minimum number of hours through convention, not contract, and are entitled to continue to receive those guaranteed hours. In those circumstances, if notice is given, they must be paid for the same guaranteed hours during the notice period.  

These are incredibly difficult times, but when dealing with your workforce, remember to be consistent, be fair, but most of all be safe. We will be providing as much advice and assistance as possible to our dental colleagues over the coming weeks and months. Stay up to date through our dental bulletin and our Facebook and Twitter pages.