Reopening of dental practices – employment law considerations

On Thursday 28 May the Government announced that face to face patient care can resume within the dental industry from 8 June. NHS England and the Chief Dental Officer confirmed that full resumption of routine dental care is supported in a way that is ‘safe, operationally deliverable and allows dental practices flexibility to do what is best for patients and their teams’. In light of this announcement, we highlight some of the employment law considerations that may arise for practices in the preparation to reopen:

Health and safety duty

As employers, practice owners have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. They must therefore ensure they carefully monitor and follow the Government and industry specific guidance in this regard. In practice this will involve preparing a return to work system which can mitigate the health and safety risks associated with the potential spread of COVID-19 within the practice setting.

Dentists are being advised to take a risk-based approach. More guidance is due to be made available and practices should keep a close out for this. The British Dental Association states that practices should carry out a risk assessment of the practicing environment and the treatment needs and status of any potential patient before reaching a decision on the approach to take. It also sets out further guidance in relation to what Personal Protective Equipment (“PPE”) is required.

Although the announcement about reopening has been made, the letter from Sara Hurley and Matt Neligan dated 28 May 2020 makes it clear that the request to reopen from 8 June is where practices assess that they have the necessary infection prevention control and PPE requirements in place.

Bringing staff back to work

Practice Owners will need to consider their initial staffing needs which will depend on the practice size and employee numbers. A plan will need to be made, based on the health and safety measures and practice requirements, together with the ability of staff to physically get to work as a result of reduced public transport resource.

If not all staff are to return together and some are remaining on furlough leave, practice owners should ensure that no discriminatory criteria are applied when selecting who will return, except where this can be justified. The Government guidance makes it clear that the usual equality and discrimination laws apply in relation to the furloughing of employees.

A plan should then be clearly communicated to staff. Throughout this process practice owners should bear in mind that staff will have had very different experiences during lockdown. Some may be anxious about the thought of returning to work, or even leaving the house as a result. Communication will be key in reassuring them of the steps taken to provide protection.

What if an employee refuses to come back to work?

If an employee does not want to return to work practice owners will need to carefully consider the reason why. It may well be a concern that can be easily resolved informally following further conversation. It may be that they are extremely vulnerable and have been advised to shield by the Government, or by their health practitioner, or that they are clinically vulnerable. It could also be that they live with someone who is extremely vulnerable to COVID-19. Each of these different scenarios would need to be considered separately and additional steps taken as required. Alternatively, it could be that they are worried that they will not have childcare in place and don’t think they will be able carry out their role as a result. If this is the case, you will need to sit down with them and understand what their situation and concerns are. Understanding the concerns and putting forward flexible solutions to work around these is going to be key, especially while ordinary childcare and educational arrangements remain inaccessible for some parents.

If there is no discriminatory element, and the practice has put all of the necessary health and safety measures in place, then an employee could be investigated for refusal to follow a reasonable management instruction, and unauthorised absence. If the absence is unauthorised then they would not be entitled to pay as they would not be willing to attend work. However, practice owners would need to carefully consider the context of a refusal to attend work before taking any disciplinary action, particularly if concerns are raised about health and safety. Certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals which do not require qualifying service, and action short of dismissal on these grounds could amount to an unlawful detriment giving rise to further claims.

Creating new, and updating existing policies and procedures

NHS England has not yet published a new Standard Operating Procedure to reflect the return to face-to-face practice although this is expected at any time. Practices should keep a close eye out for this guidance.

Alongside this practice owners should consider whether existing policies are sufficient to ensure employees will comply with all new safety measures. It may be necessary to update existing policies or develop new ones.

Training staff

It will then be important for dental businesses to factor in training employees on any new safety measures and procedural changes, before they begin to perform their duties. Practice Owners should think about how they will do this, whether through virtual training or otherwise.

If you have any questions in relation to this article please contact Catherine Hope.

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