NHS and redeployment of your workforce
On 25th March 2020 the CDO and NHS England sent a letter to all NHS dental practices, advising them that they would continue to be paid under their NHS contracts, subject to staff being redeployed. It gave four examples of where staff might be redeployed to, namely urgent dental care centres, supporting the NHS both generally and in response to the COVID-19 outbreak, voluntary or local authority COVID-19 response services. It was unclear at that time whether such redeployment was voluntary and what would happen if staff said no. Would the NHS still make payments?
On 4th April 2020 the CDO and NHS England finally published its framework on redeployment. Unfortunately, it does not answer these key questions. However, it does give information on potential roles staff could be redeployed into.
Where might staff be redeployed to?
From page 8 onwards of the framework there is a table that sets out each department within the NHS where assistance may be needed, these are:
- Critical care
- General hospital
- Medical practices
- Ambulance services
- NHS 111
- Social care
- COVID-19 testing
In that table, potential jobs have been identified, with who might be able to undertake those jobs and what training/supervision will be needed. For example, in A&E NHS England considers that dentists and DCPs will be able to take a patient’s medical history and that no training or supervision will be needed for this.
Whilst many of the jobs listed are specific, there is a catch all ‘learning and performing new tasks as required’, which includes ‘any member of the team’. It may well be that dentists and DCPs will be asked to perform a number of roles outside of their current skill set should the medical response to the coronavirus pandemic require it.
Further, deployed staff and dentists must also be prepared to undertake a range of “low skilled” tasks, such as housekeeping, porter services, administrative duties, delivery of medicines and talking to relatives.
It is clear that the intention is that all members of the dental team, regardless of their skill set, may be redeployed to support frontline NHS staff in the fight against COVID-19.
Later on in the document there is a Q&A section, question 28 says ‘What roles might I be expected to do?’ It is of note that dental nurses and therapists could be asked to turn and wash patients, a task they do not perform and have no expertise or training in doing.
It is paramount that when you are securing your staff’s consent to be deployed that they understand the nature of the work that they could be asked to do.
Is deployment voluntary or obligatory if I want to be paid under our NHS contract?
Unfortunately, the document remains unclear on this point. Whilst the language used in places suggests deployment is voluntary, this framework is designed to map skills with potential roles for both NHS staff and private dentists and DCPs who have volunteered. As such it is dealing with both volunteers and deployment for the purposes of receiving payments under the NHS contact.
At page 5 there is a flowchart ‘transfer of talent’, it appears that NHS practices are likely to be deemed ‘salaried by the NHS’ and as you will see in the flow chart they do not need to register; they will simply be ‘inducted’. In addition, it states ‘As part of the funding package, the NHS encourages dental practices to support the redeployment of professionals and staff working in general dental services to underpin the wider NHS response, as is happening across the rest of the NHS.’
The guidance does not however explain how this ‘encouragement’ should be achieved, or what will happen if staff refuse despite being encouraged.
The question will be, if a practice owner can evidence that they actively encouraged staff members to deploy, is this sufficient to ensure that they continue to receive payments under the contract? This seems unlikely.
During the CDO’s webinar on 3rd April 2020, it was confirmed that in the region of 13,000 volunteers had signed up to support the NHS. Whether volunteers will be deployed first, given they have shown an explicit willingness to help, is again not clear.
Unfortunately, despite the fact that the main questions being asked by practices, is how this process is going to work in practical terms and what do I need to do to ensure we continue to be paid? The CDO and NHS England have failed to address these points.
Dental practices should therefore proceed on the basis that deployment is obligatory for those who require payment under the NHS contract until this has been clarified.
What about vulnerable staff?
In the Q&A section, a number of questions are asked, such as ‘what if I am pregnant’ or ‘what if I am vulnerable?’ The document confirms that there are other non-clinical, non-patient facing roles that can be undertaken and that can be performed remotely. As such all staff have the potential to be deployed even if they are vulnerable. When providing details to the LAT you should make it clear which staff would fall into these categories. Ensure that staff give consent to the disclosure of any personal or sensitive data before this is done.
Asking staff to be redeployed?
Our view remains that for certain duties, such as washing patients, this will be a role outside the scope of the duties within the employment contract. As such, under employment law, employers cannot force an employee to be deployed. To do so would risk being in fundamental breach of their employment contract. If they resigned in response to such a breach, this could give rise to a claim for unfair constructive dismissal. As this is unchartered territory, it is not known whether a tribunal would view these unprecedented circumstances in the employer’s favour or not.
Employers should therefore write to employees, seeking their consent to be deployed. Provide as much detail as possible in this letter, explaining the reasons why deployment is necessary, and that the business’ funding is dependent on it. Remember to seek employee consent to pass on details to the Local Commissioning Team (LCT).
If staff refuse, discuss this with them and ascertain the reasons for their refusal. If they continue to refuse, then the only options available may well be unpaid leave or dismissal. Please remember you must follow correct dismissal processes or risk a claim for unfair dismissal. The government have made it clear that businesses that are funded by the government should not be furloughing staff. Further, it is likely to cause friction with other staff members who are deployed if you furlough those who refuse and could lead to grievances being raised.
2. Self-employed DCPs
In relation to self-employed dentists and DCPs, practices should again seek their consent to be deployed, this consent can then be communicated to the LCT. We would recommend putting in place a contract to deal with the redeployment and payments, in case issues arise later down the line.
If the self-employed dentist or DCP refuses, this may well frustrate the contact, or an agreement can be reached that the contract will be postponed until they are able to return to work.
If staff are deployed?
You still remain responsible for employees, as such you should make it clear to them that they should only undertake tasks within the competency levels and to speak with management at the posting if they are not comfortable with what they have been asked to do and to escalate to you if issues cannot be resolved locally.
If you need any assistance with drafting letters to staff or amending contracts please do not hesitate to contact us on 0207 388 1658 or email at email@example.com.
Laura Pearce, senior solicitor