Jodie Sinclair, partner at Bevan Brittan, examines how care providers can ensure they are supporting their staff in the best way possible.
Throughout the Covid-19 pandemic, the role of the workforce has been instrumental as care providers have grappled with significant operational issues on the ground.
The scale of the challenge has been enormous, but many providers have reported a powerful sense of team morale and common purpose across their workforce.
Six months into the pandemic and with the increasing spectre of a second spike in the autumn, ensuring the engagement and resilience of the workforce should be one of the overriding priorities for employers as they take stock, assess the lessons learned and attempt to press the ‘re-set’ button.
Covid cases in care homes continue to decrease which is welcome news as is the lessening of restrictions to enable families to visit their loved ones.
But, despite these positive changes, the impact of the pandemic on the social care workforce is already apparent with particular staffing groups such as older men and people from ethnic minority backgrounds being more significantly affected than others, raising potentially wider workforce issues.
How providers support staff in this ongoing situation will be key. It seems likely that certain operational as well as legal challenges may become more prevalent in the months ahead.
Anxiety, stress and burnout are being increasingly cited as sickness absence reasons amongst the sector. At a time when care homes still need to be on high alert and follow strict infection control procedures, any increase in sickness absence levels will understandably place additional burdens on already stretched providers.
With the summer period upon us, more staff are likely to take holiday leave. Whilst employees have both statutory and contractual rights to take leave and should do so for their own health and wellbeing, managing resourcing gaps at this time will need to include additional considerations and implications. This is especially if staff go abroad and upon their return are symptomatic, requiring them to self-isolate.
It is unlikely to be a reasonable management instruction to prohibit staff from travelling abroad, given this would be intruding on what an employee can do in their leisure time, especially if the destination is currently exempt as a ‘corridor’ country. However, if staff do travel and are subject to the quarantine rules, employers may elect to advise their staff that they will not receive their contractual pay but will be required to use their annual leave or take unpaid leave if they cannot work from home during that period.
There is some risk that employees will assert a breach of contract or unlawful deduction of wages, but if communication is clear and employees are kept informed as to the rationale for such a position, and staff are treated equally, employers can take steps to mitigate against those risks.
With the shielding guidance being paused from 1 August, employers will be taking steps to return staff to the workplace as long as it is Covid safe. However, there are already reports of staff expressing concerns with returning, even where appropriate risk assessments have been carried out and additional safety measures put in place.
Where staff have an underlying medical condition, are disabled or pregnant, employers will have specific statutory duties, such as the duty to make reasonable adjustments, but if these are done and working from home is not possible, it may be a reasonable management instruction to require that employee to attend work.
A failure to do so, subject to engaging with them to fully understand the reasons and exploring options, may warrant taking disciplinary action or withholding pay on account of unauthorised absence.
There are also a raft of potential workforce issues where employees may start to escalate concerns regarding their own treatment during the pandemic, or more broadly in respect of health and safety concerns; for example, in relation to the availability of appropriate personal protective equipment.
It will be relatively easy for employees to assert that they are ‘blowing the whistle’ for making a protected disclosure and are therefore protected from being subjected to any detriment and/or dismissed for raising such a concern.
The employment tribunals are already dealing with a backlog of cases, with hearings paused temporarily during the pandemic, so it will be some time before we can assess the true impact of employee grievances or wider concerns crystallising into litigation to include claims such as unfair dismissal, discrimination, unlawful deduction of wages or whistleblowing claims.
Communication and engagement
Given this complex set of circumstances, where then should the focus lie for care operators moving forward?
Firstly, it is key to keep communicating with staff regularly and keep ensuring that everyone understands the required procedures and protocols in line with any new government or regulator guidance as the situation evolves.
Listen to staff feedback and concerns, create forums where views can be discussed and aired – giving individuals a voice keeps staff engaged and promotes a team culture.
Focus on supporting staff, and in particular those from vulnerable groups such as those who are disabled, pregnant or from BAME backgrounds (in respect of possible higher susceptibility to the virus).
The health and wellbeing of staff must remain a priority; signposting support mechanisms – such as the NHS mental health app and other counselling resources – is important.
Employers should also ensure that they maintain adequate records and keep a clear audit trail of all management, operational and HR decisions which may be relevant in the event that employees seek to enforce their rights in legal proceedings.
This may be an additional administrative burden, but ensuring that key decisions are documented may assist in defending claims and minimising compensation exposure down the line.
The launch of an inquiry by the Health and Social Committee to examine workforce burnout across the health and social care system will hopefully go some way to recognising and improving the invaluable role of the social care workforce.
The profile of social care has risen tremendously through the pandemic. There is much to build on – even if, in the short and medium term, there may be a range of workforce challenges for care providers to navigate.