Recalling the dental team – legal considerations

Return to work noticeWith dental practices returning to work and recalling their dental teams, Stuart Craig outlines some of the legal complications after the COVID-19 lockdown.

As dental practices in England start to reopen and attempt to return to some sort of normality, some employees for various reasons might not be keen to return to work that quickly. This article considers how practices can deal with easing employees into returning to work and what employers can consider if ultimately an employee refuses to return.

Who should come back to work and when?

The need for the practice to get people back to work based on levels of anticipated work will largely govern this. The government’s furlough scheme is going to be in place until 31 October 2020. Be aware that from 1 August employers have to start to contribute to the scheme. Many employers will be relying on this for the full duration that the scheme is in existence. From 1 July 2020, it is possible for employers to bring employees back part time. And to claim furlough for the days that they are not at work.

You don’t need to bring all employees back at the same time. However, you should always treat employees consistently and fairly. But this doesn’t mean treating them all the same, or applying the same requirements.

We would anticipate that the vast majority of, if not all, practices will approach the return on a phased basis. This means some employees may return to work sooner than others. As such, you may not be treating everyone the same. But you must try to be fair and consistent; you need to do what works best from a business perspective. You can rotate people, require them to come in at different times etc. Where people perceive that the return is fair, they are far more likely to buy into it. This will help avoid resentments building up between colleagues.

Government guidance

Remember, the government guidance remains clear. If you can work from home then you should continue to do so. Clearly this might have some practical difficulties in dental practices. But if you have had administrative staff who have not been furloughed and have been able to work from home throughout lockdown, then you should consider whether it is appropriate for them to continue to work from home.

Employers will need to be very careful to recognise workers in vulnerable groups. Employees of BAME backgrounds are particularly susceptible to COVID-19. Employers must also be careful of those who develop or live in a household with someone who develops symptoms of COVID-19. Again, look at government guidelines. You should be aware that this may mean a higher number of staff absences and consider how to practically manage this.

How much notice do I need to give staff to return to work?

There is no minimum period of notice to give employees of their return. But from a good HR practice point of view, you should speak to your staff and let them know what the plan is. Give people a reasonable amount of notice of return. This will allow them to prepare both practically and psychologically.

Communicating with employees – the early stages

The only way in which practices can manage the transition back to some form of normality is by speaking to staff and re-assuring them about the measures to safeguard their health and safety. You will need to base any successful return to work on carefully thought out plans. Provide re-assurances to employees that you are taking necessary action.

Risk assessments

The government allowed dental practices in England to reopen on 8 June 2020. It is vital that you conduct a risk assessment and you should review this as you bring more employees back. Consider the latest government guidance.

Your risk assessment must cover every foreseeable risk arising from a return to the workplace. This includes the impact of reduced staff levels and any operational/administrative changes necessary to ensure social distancing. This should also include consideration of risks to BAME staff.

Dental practitioners will be aware that organisations such as Faculty of General Dental Practice and the College of General Dentistry have issued extensive guidance to help in the identification and mitigation of risks.

Practices should take appropriate steps to manage and mitigate identified risks. Where this is not possible, the practice will need to decide whether certain activities are necessary. Or if they can be temporarily put on hold.

Is there anything I need to put in place for the return of employees? What are my responsibilities?

The basics of health and safety law requires that employers take ‘all reasonably practicable steps’ to ensure workers’ safety and that a suitable and sufficient assessment of risk is undertaken. It is the individual assessment of COVID-19 risk in each workplace that will be central. Employers will need to conduct a robust risk assessment. And then put robust processes and safeguards in place to address those risks.

Is it possible to dismiss someone who refuses to return to work?

Potentially. The first question is why the person is not able to return. Individual circumstances will be relevant in terms of whether a practice can safely dismiss an employee.

Employers should ask themselves two questions in this situation:

  1. Have I done everything required in order to make the workplace safe for the individual to return?
  2. Is what the employee saying reasonable?

If the answer to question one is no, then a dismissal is unlikely to be fair. However, even if the answer to question one is yes, then there is still question two to address. If the employee has reasonable grounds as to why they are unable to return to work, eg due to health issues, childcare responsibilities etc then the dismissal is unlikely to be fair. It is only if you can answer yes to question one and no to question two that you can have some confidence in the potential safety of the dismissal.

Dismissals based on objections to returning to work on health and safety grounds will very often be risky. They are highly fact specific. You should therefore take specialist legal advice before taking any action.

What can I do if an employee refuses to work because of a lack of PPE?

Put simply, if it is a requirement of a particular role that PPE is worn, then this should be provided to the employee. If an employer dismissed an employee for refusal to carry out their role due to lack of PPE, then this is likely to be an automatically unfair health and safety dismissal.

Furthermore, anyone who is subject to a detriment as a result of raising a health and safety concern, eg someone in this situation who refuses to work due to lack of PPE and is sent home without pay, will also have a potentially valid claim in the Employment Tribunal for that detriment, even if they are not dismissed.

Can I dismiss someone who refuses to wear PPE or the level of PPE we consider necessary to safely work?

Potentially, yes. If someone refuses to follow the health and safety measures that have been put in place to protect them, colleagues and possibly their patients, then this is a disciplinary issue and should be dealt with as such. Repeated failure to comply with the requirement to follow these measures, or a one-off significant failure, may be sufficient to justify dismissal, depending on the circumstances.

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