COVID-19 Q&A | Sintons | Healthcare | GPs

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

We will bring you a question and answer per day for the next few weeks.

  1. Will I need to review my partnership during the current working arrangements?

Your GP partnership agreement will contain a number of provisions in relation to how the practice is run that may not be applicable at the current time, for instance the frequency of Partners’ meetings and the ability to carry these out via video/telephone conferencing and it is therefore recommended that amendments are made to accommodate new ways of working, particularly if these are likely to continue in some form for the foreseeable future.  This will avoid potential litigation at a later date in the event that there is a dispute between the Partners about any key business decisions.

Many practices have also not yet amended partnership agreements to take into account Primary Care Networks and if the current crisis has brought network working forward. Partnerships should consider making this amendment in the current climate.

  1. Will I need to review contracts made with third parties?

You should review any contracts made with third parties to establish whether the “force majeure” clause deals with pandemics and specifically refers to governmental steps taken in respect of such a pandemic. It may be necessary to rely on if the performance of a contract cannot be fulfilled.

  1. What about after the COVID-19 crisis?

GPs should give some thought as to whether the existing working arrangements will continue for the longer term and consider formalising those that have not been put into writing, for example working relationships with other practices. This will avoid the need for expensive litigation should a dispute arise.

  1. What is the guidance for GPs working?

GMC online guidance is available for those GPs who are currently working or have returned to the NHS to assist with the current crisis.

  1. How does guidance on consent apply during the COVID-19 pandemic?

The current guidance from the General Medical Council in relation to consent remains the same as before insofar as it`s practical in the circumstances. While some interventions need a signature because of local policies, there is nothing in the guidance which stipulates that a patient’s written consent must be obtained prior to any treatment being provided. Further, for most healthcare decisions GPs can rely on a patient’s verbal consent as before. The important thing is that the patient has had the opportunity to consider the relevant information and has decided to go ahead with the treatment intervention. All decisions about a patient’s treatment and care should be recorded in the patient’s record where written consent is not obtained. The primary requirement for all doctors is to respond responsibly and reasonably to the circumstances they face

  1. One of our practice staff members is refusing to attend work for fear of COVID-19. What should we do?

If your employee cannot work from home, then you will need to consider the current public health advice, the specific reason why they are concerned about attending the practice and  if there are no satisfactory reasons, take disciplinary action, or withhold pay in light of their refusal.

You should be checking whether they fall within one of the categories of people that the Government has “strongly advised” to work from home, or whether they are refusing to attend because of a disability which they believe puts them at high risk of serious illness if they catch COVID-19.

If there is no increased risk, the public health advice is such that the employee could reasonably be asked to continue to attend work. If they do not, then it is possible that you could investigate them for misconduct in terms of a refusal to follow a reasonable management instruction, and their unauthorised absence. If the absence was unauthorised then they would likely not be entitled to pay as they would not be willing to attend work.

That being said, the context of the refusal to attend work would need to be carefully considered. It could well be that they are concerned about colleagues not following hygiene rules and worrying about being placed at an increased risk and that steps could reasonably be taken to resolve the issue. You should listen to their concerns carefully as there may be issues that need to be addressed in terms of the business taking appropriate steps to mitigate any dangers concerning risks of contracting COVID-19. A complaint that the workplace is unsafe could also amount to a protected disclosure for the purposes of whistleblowing legislation and the protection against detriment and dismissal that this provides.

It would be prudent to seek legal advice before taking any disciplinary action in these circumstances.

  1. We are expecting a surge in demand once we start to take steps out of the lockdown, can we cancel employees’ planned holidays?

Provisions under the Working Time Regulations 1998 allow employers to order a worker not to take statutory leave on specified dates, by giving as many days’ notice as the period of holiday to which the notice relates. This could effectively allow you to cancel pre-approved statutory leave if there was enough time to comply with the notice requirement.

That being said, any such step should be exercised with caution. If holidays are cancelled at short notice this is likely to be unpopular, may damage employee relations and you could end up with compensation claims for any cancellation charges incurred. Consideration should be given to individual circumstances as there may be other reasons why the holiday has been booked which need to be taken into account.

In addition, unreasonably cancelling or disrupting holiday plans in this way could end up placing you in breach of the implied term of mutual trust and confidence, leaving you open to a constructive unfair dismissal claim. You should clearly explain the reasoning behind any proposal and try and come to an agreement whilst trying to resolve any concerns.

In terms of employees then being able to take the statutory holiday at a later date, it is important to note that emergency legislation was passed at the end of March which allows carry over of the 4 week holiday entitlement under the Working Time Directive for a period of 2 years following the year in which it was due. This is where it has not been reasonably practicable to take it in the leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)”.

  1. Can we require that staff are tested for COVID-19 where the test is available?

Practice staff are more than likely going to want to be tested for COVID-19 given the potential implications. That being said, if testing is accessible safely, a requirement to be tested is likely to be a reasonable management instruction for individuals carrying out certain duties given the position of primary care in the response to COVID-19 and the need to protect colleagues and patients.

In the event that an employee refused to be tested and refused to work, this may amount to an unauthorised absence where pay could be withheld. However, care would need to be taken to understand the reasons for any refusal and whether steps could be taken to address any concerns. If an employee continued to object without good reason then it would need to be made clear that continued refusal could amount to misconduct for failing to follow a reasonable management instruction and disciplinary action taken. Alternative options such as working from home would also need to be considered. Clear communication is going to be key, as well as fair and consistent treatment.

The situation would be different if an employee is not able to be tested safely, for example, they are self-isolating, and they would be entitled to statutory sick pay in such circumstances.

  1. We need to second staff to work at a GP COVID-19 “hot site”. What should be our main considerations?

The general idea behind a secondment is that an employee is temporarily assigned to work for a different part of their own employer or a separate organisation. In the current context it is likely to be that practice staff are simply working at another site under the direction of another organisation.

A secondment is going to amount to a three-way arrangement and there are a number of considerations to be made Some of the main issues include (without limitation): the correct identification of the employer of the seconded employee; whether an employee’s contract of employment allows for their secondment; the duration of the arrangement; who bears responsibility for the management of an employee; practical arrangements in terms of pay and other costs; the protection of confidential information; the termination of the arrangement; and who will bear any liabilities arising during the secondment or on termination.

Practice employers will retain a duty of care to take all reasonable steps to ensure the safety of their employees in the course of employment. The extent of that duty during a secondment will depend on a number of factors including among other things: the place where the work is to be done; the experience of the employee who is despatched to work at the site; the nature of the work they are required to carry out; and the degree of control that the employer can reasonably exercise in the circumstances.

Although a secondment of this nature is going to be slightly out of the ordinary given the circumstances, and time may be particularly of the essence, the parties should agree the main terms and conditions of the arrangement and put these in writing if possible.

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