The Government has announced that it will be withdrawing the staff terms and conditions section of the COVID-19 workforce guidance in England with effect from 7 July 2022. We summarise the changes and their potential impact below.

The changes

A note on transitional arrangements for enhanced sick pay for absences related to COVID-19 was issued by the Government on 1 April 2022 for the period up to 30 June 2022. On 29 June 2022, NHS employers were advised of the Government’s decision to withdraw the staff terms and conditions section of COVID-19 workforce guidance in England  with effect from 7 July 2022 (note that different provisions will apply going forward to the NHS in Wales and in Scotland).

The staff terms and conditions section of the COVID-19 workforce guidance includes sections to help NHS employers manage the impact of the pandemic on sickness absence, self-isolation, annual leave and other forms of absence, recording COVID-19 related absences on ESR, pension scheme rules, infection control, and risk assessments. So, although the focus of the advice to NHS employers is on the cessation of 

1. enhanced sick pay for those absent from work due to being unwell with COVID-19, and, 
2. COVID-19 special leave and pay for the purposes of self-isolation, 

it should be noted that the guidance that is being withdrawn covers more than just those two elements.

Points to note

• New absences – from 7 July 2022, the provisions of section 14 of AfC will apply for any new episode of absence due to COVID-19 sickness or self-isolation - those who are in receipt of enhanced COVID-19 sick pay from an episode of absence commencing before 7 July 2022 “will be transitioned back to their normal contractual sick pay entitlements” with effect from 1 September 2022 (unless they have already returned to work).
• Calculation of sick pay - any period of COVID-19 sickness or self-isolation before 7 July 2022 will not be counted for the purposes of calculating entitlement to contractual sick pay – so the contractual sick pay entitlements of staff who are still off sick with COVID-19 sickness by 1 September 2022 will effectively be intact from 1 September 2022 (with employees potentially entitled to a further lengthy period of paid sick leave). Conversely, any period of absence that commences on or after 7 July 2022 will be counted.
• Discretion to extend sick pay – employers should bear in mind that it may be appropriate in any individual case to extend / increase the level of sick pay entitlement under the discretion allowed under paragraph 14.13 of AfC and in accordance with an organisation’s usual procedures for doing so. Employers should also ensure parity of treatment with employees who are on long term sickness absence for non-COVID related reasons, where appropriate, to avoid creating a two tier workforce and potential disability discrimination claims.
• Absence management triggers – the announcement does not explicitly address the arrangements under which COVID-19 sickness absence was discounted for the purposes of sickness absence triggers. However, on the basis that there is a clear move to standard sickness absence management processes, it is reasonable to adopt the position that usual absence triggers can now be applied.
• Absence management / dismissal – the NHS Staff Council’s July 2021 Long-term COVID absence guidance currently still remains in place. We recommend that employers continue to manage all long-term COVID absences in accordance with it and ensure that every effort is made to facilitate a return to work before any decisions are made to dismiss.  
• Infection control – guidance was issued on 1 April 2022 by the UK Health Security Agency on managing healthcare staff with symptoms of a respiratory infection or a positive COVID-19 test result. It recommended that individuals should isolate for five days if they test positive and can return to work when they have received two negative LFD test results, taken 24 hours apart. Some individuals may be asymptomatic and feel well despite testing positive and further guidance on this point is expected.

Next steps

The NHS Staff Council has been asked to prepare new guidance material for publication during the week commencing 4 July 2022 to support NHS employers in England in the management of 

1. the transition of staff back to their normal contractual sick pay arrangements and 
2. any new COVID-19 cases from 7 July 2022 onwards. 

We will issue a further insight when that guidance is published.

How Capsticks can help

Our employment law and HR experts have significant experience of supporting employers to manage cases of long-term sickness absence and to deal with other issues arising out of the COVID-19 pandemic (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims). 

If you need further guidance on the implications of the withdrawal of the staff terms and conditions section of the COVID-19 workforce guidance or a specific case, please contact Kirsty MacDonald, Sian Bond or Chloe Edwards.