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Legal rights and coronavirus: NHS and healthcare workers

As the coronavirus increasingly affects our daily lives we aim to provide some useful discussions of your legal rights during these uncertain times. Today, employment solicitor Ryan Bradshaw discusses the rights of NHS and healthcare workers

NHS workers in face masks
Related Areas of Practice:
Ryan advises employees on all areas of employment law, including discrimination claims, unfair dismissal and redundancies. He has a particular commitment to tackling discrimination suffered by disabled people, both in the workplace and in their day to day lives, and has provided training on the application of the Equality Act to the Citizens Advice Bureau, GMB and local government officials.
Coronavirus (also known as COVID-19) is spreading across the UK and the world at a significant rate. In these uncertain times we are more reliant than ever on the National Health Service, and the health and care workers who are potentially putting themselves in danger every day to keep the country as safe and healthy as possible.
 
We want to make sure that our wonderful NHS staff receive the best possible protection as they seek to ensure the health and wellbeing of our nation. In order for this to happen it is crucial for NHS staff to know their rights, and more importantly to be able to enforce them, when they go to work. 
 
This blog will cover (click each link to skip to the relevant section):
 

Current advice and guidance for NHS staff

The present advice of the Government (as of 25 March 2020) is that those “who are at increased risk of severe illness from COVID-19 should be particularly stringent in following social distancing measures.” 
 
Practically, social distancing is impossible for those who work for the NHS. The ‘high risk’ categories are explained on the NHS website, see “Am I at risk” for more specific guidance. 
 
 
Remember, the NHS should not neglect their own employees’ health and wellbeing. If you are a member of a union, it is important to stay in touch with them, and follow the advice and guidance which is specific to your area of work. If possible, speak to your local union representative, and make sure that you are reporting any concerns to them. 

Am I at risk?

“Vulnerable people” are those who are at an increased risk of severe illness from COVID-19. This group includes those who are aged 70 or older, anyone entitled to free flu jab as an adult each year on medical grounds, and those who are pregnant. “Extremely vulnerable” people have clinical conditions which put them at even higher risk. If you are in this category, you should be directly contacted by the NHS with advice – see the list of conditions on the government's website.
 
You may wish to inform or remind your employer of your health condition and request that they put procedures in place to mitigate any risk to you.
 
Your employer should not subject you to any detriment for making such a request nor should they subject you to any detriment merely because of your condition. 
 
You can show your employer the government guidance and discuss what action needs to be taken to keep you safe.

What protection does the law offer NHS workers?

Health and Safety

 
Health & Safety at Work Act 1977 & Management of Health & Safety at Work Regulations 1999
 
Your employer is under a duty to do everything that is reasonably practicable to ensure that you are safeguarded during the course of your work. Your employer ought to be proactive in minimising any risks to you.
 
Risk assessments should be carried out to ensure the safety of your employer’s staff and service users and these risk assessments should be kept under review. Clearly the issues thrown up by COVID-19 would indicate that risk assessments should be regularly reviewed and updated to ensure your safety as an employee.
 
What does this mean practically?
 
Your employer should carry out regular risk assessments and, given how quickly things are changing, this should be reviewed daily. Public health guidelines have to be followed: this means providing appropriate PPE, hand sanitiser and proper information and training about how and when they should be used.
 
Be as informed as possible: The Royal College of Nurses (RCN) advise if you are concerned about possible risk of exposure then contact your local infection prevention control lead (identify who this is, and check in with them with your concerns) and follow their advice, keeping your manager and other team members in the loop. 
 
Rest breaks: The duty is on your employer to ensure you take regular breaks and monitor working hours to ensure employees stay as healthy and well as possible. 
 
See the NHS Employers website for guidance about protecting your wellbeing during the COVID-19 crisis. 
 

Employment Rights Act 1996

Sections 44 and 100 of the Employment Rights Act 1996 (ERA) provide protection for employees against both detriment and dismissal in cases involving health and safety issues in the workplace. 
 
As an employee you are protected against detrimental treatment, and dismissal by your employer if you raise concerns about health and safety. 
 
What does this mean practically? 
 
If you are so concerned about health and safety at work that you do not attend, or choose to leave/cut short shifts you could be protected under this legislation. 
 
Your employer is under a duty to ensure that your workplace is safe, if they fail to do so you are entitled to raise any issues with them without the fear of being treated badly as a result.
 
There are certain legal tests that the ‘circumstances of danger’ have to meet. Your belief of the danger has to be genuine and reasonable and it has to be ‘serious and imminent’. These are areas of law which are not commonly explored, but in a case of a pandemic, where it is clear that you are repeatedly exposed to a high level of danger, it would be hard for an employer to argue otherwise. 
 
If you refuse to subject yourself to a situation you genuinely and reasonably consider to be dangerous you should review the circumstances before doing so, this would include your own knowledge of the situation, the facilities available to you and any authoritative advice. You must be careful to ensure that any action you take is not negligent in the circumstances. 
 
Of course, by its nature a frontline worker is a dangerous job in itself, and the court will think about the appropriateness of the steps taken by the employee and the employer. So, if you are briefed regularly on the dangers you face at work, are provided with all the necessary equipment (face masks, gloves, other protective clothing) and allowed proper breaks and rest periods it would be – from an objective point of view – a mitigated risk. However, if you are regularly working without the proper protection, are unaware of what measures are in place to keep you safe and are genuinely afraid for health and safety you could fall under the scope of this law. 
 
It is worth remembering that this is a new, and quickly changing area, and issues such as an appropriate level of protection, and what constitutes ‘circumstances of danger’ will be contentious issues. 
 

Discrimination

Equality Act 2010 (EA 2010)
 
If your work is in England, Scotland or Wales your employer is bound to follow EA 2010. This applies across nine protected characteristics but the most relevant at the present time are sex, disability and pregnancy and maternity.
 
If you have a disability within the meaning of EA 2010 this likely places you in the “vulnerable” or “extremely vulnerable” groups above. If you are disabled your employer has a legal duty under EA 2010 to make reasonable adjustments to your working arrangements. In order to qualify for protection your employer must have “knowledge” of your disability. 
 
The following protections are available under EA 2010:
 
  • Direct discrimination – the right to not to be treated less favourably because you have a protected characteristic e.g. your employer dismisses you because you disclose that you have a disability
  • Discrimination arising out of a disability – where a person is treated less favourably as a result of something that has happened because of their disability e.g. your employer disciplines you for taking time off work due to a requirement to self-isolate
  • Indirect discrimination – where your employer has a policy that puts people who share your protected characteristic at a disadvantage e.g. your employer refuses to let anyone move from high risk frontline to less risky support roles
  • Failure to make reasonable adjustments – where an employer fails to amend policies that put disabled people at a disadvantage e.g. you request to transfer to a different role but your employer refuses to allow you to do so
  • Harassment – subjecting people to a hostile, degrading or intimidating working environment because of their protected characteristic e.g. you ask for priority access to personal protective equipment due to your disability and your manager uses offensive language about your disability 
  • Victimisation – subjecting people to negative treatment because they have tried to assert their rights under EA 2010 e.g. you are disciplined after making a request for adjustments
  • Association – subjecting people to direct discrimination, harassment or victimisation because of the disability of someone associated with them e.g. you are told that you are a rubbish nurse because you request that you are not assigned to a Covid-19 ward as you have a disabled and vulnerable child at home
 
What does this mean practically? 
 
You have the right not to be subjected to poor treatment as a result of your having one or more of the protected characteristics.
 
If you are disabled and concerned about any issues you are facing in the workplace that you feel are placing you at an unacceptable risk then you have the right to request that appropriate changes be made to your workplace to accommodate any specific needs you might have arising out of disability.
 
If you do raise concerns that your employer is potentially behaving in a discriminatory matter you should not be treated poorly as result.
 

Whistleblowing

Employment Rights Act 1996 and the Public Interest Disclosure Act 1998
 
This legislation includes protection for employees who make a ‘protected disclosure’ or ‘whistleblow’ against their employer.  If you choose to provide information in the public interest, which in your reasonable belief tends to show that the health and safety of any individual has been or will be endangered, you should not be treated differently, or dismissed, for your actions. If you are, you may be able to pursue a claim against the employer in the Employment Tribunal.
 
What does this mean practically?
 
You should feel able to bring any genuine concerns about workplace issues, that you consider there is a public interest in addressing, to the attention of your employer without the fear of recrimination. This is of particular importance at the present time.
 
If you are concerned about health and safety issues or a failure to comply with legal obligations in your hospital or other place of work, there are circumstances where you can share these concerns beyond your employer. There are strong laws in place to protect whistle-blowers, but the requirements are strict, so please consider them before making any external disclosure. 
 
See the NHS website page on whistleblowing for guidance on disclosure within the NHS. 
 

Pregnant healthcare workers

Guidance from the government is that if you are pregnant you are vulnerable and ought to stringently follow social distancing rules (which includes working from home, limiting face-to-face interaction and avoiding contact with all those displaying symptoms of COVID-19) as the risks to pregnant women and their unborn children are not yet fully understood.
 
The Royal College of Obstetricians and Gynaecologists (RCOG) gives more detailed advice for workers in their first or second trimester (less than 28 weeks pregnant), with no underlying health conditions and for pregnant healthcare workers after 28 weeks gestation, or with an underlying health condition.
 
The full RCOG guidance can be found on their website
 
We would suggest that you are entitled to follow the guidance provided by the government but some of you may prefer to follow the guidance of RCOG. 
 
Under Management of Health and Safety at Work Regulations 1999, your employer has a duty to carry out a risk assessment that is specific to pregnant workers. Therefore, if you are a pregnant health worker exposed to an increased risk of infection, you should ask your employer to carry out a full review of the risks and take action as necessary such as providing suitable alternative work or suspending you on full pay.  There is guidance from the Health and Safety Executive on these issues and your rights here.
 

Refusal to work/ inability to work 

If your reason for not coming to work is that you have a genuine need to self-isolate or are living with someone who is particularly vulnerable, you should communicate this to your employer as soon as possible. NHS staff should receive full pay whilst in self-isolation. ‘Full pay’ is paying what you would have otherwise earned if you were not in isolation, inclusive of any enhancements.
 
The Coronavirus Job Retention Scheme confirms that people who choose to stay at home, as result of the increased risk to them due to Covid-19, will be eligible for Statutory Sick Pay (SSP) even if they are not personally unwell. SSP is paid at a rate of £94.25 per week.  We are still awaiting full details of how these schemes will operate in practice.
 
If your reason for not coming to work is that you or a member of your household are in a vulnerable group, your employer may owe duties to you under EA 2010 and/or protections for pregnant workers as above.
 
If you have a genuine and reasonable belief that by continuing to attend work you are being placed in serious and imminent danger which you are unable to avert you are entitled to take leave and not return to work until that danger is dealt with. You are entitled to get out of harm’s way. If you take this action in a genuine and reasonable manner you should not be treated poorly as a result. This would include being subjected to any disciplinary action or dismissal.
 

What can I do to minimise risk?

As a minimum you may wish to ensure that you are provided with the following items:
  • Long-sleeved and fluid repellent overalls
  • Long gloves with a tight fit
  • FFP3 respirator
  • Eye protection – ideally a full face visor
You should ensure that this equipment is of an appropriate size for you and properly fitted.
 
The following points are worth remembering:
  • Duty of care: your employer has a duty of care over you, whatever your role, and whatever state of crisis the healthcare system is placed under. This is their duty and if you are unsure how they are taking these steps, ask them. 
  • Know your rights. Check government and NHS guidance as often as possible and review what provisions are in place in your workplace. How often are these updated? Have you been provided with proper information?
  • Stick together. It is easier to speak out in a group. If you are part of a union, stay in touch with your representative and other members. This is an incredibly stressful time and you must rely on their support. Check specialised guidance and if you have concerns: raise them. Check in with other members of staff, across different healthcare departments if you can. 
  • Prioritise your wellbeing, and that of your dependents and family, wherever you can. Do not be afraid to inform your employer of any health concerns or vulnerabilities you or your family may have. You are protected in law and your employer has a duty to treat you properly and fairly, regardless of Covid-19. 

Useful resources

The government and the NHS are publishing multiple guidance notes and advice. For NHS staff there are the following pages:
 
 
Useful resources are available online from the following unions:
 
Key sections of these guidance are those which focus on protection at work, and employment specific concerns and how your employer should protect you in your day-to-day work. 
 
For those who are union reps themselves the TUC website provides guidance on how to best represent your members. 
 
Further guidance:

This advice is correct at the time of publication (25 March 2020). This is intended as a general piece to give an overview of the rights and enforcement options under employment law and should not be relied upon as specific legal advice.

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