Given the significant pressures on staff and services at this time, annual leave should not be the first call for any absence related to COVID-19.
NHS employing organisations should, where possible, consider planned leave and how staff annual leave requests might be taken both over the Easter period and beyond.
How staff rest and recuperate at a time of the pandemic is vital. Employers will need to consider how they ensure that staff have enough rest in order to maintain their own physical and mental wellbeing.
Due to these exceptional circumstances, there will be difficult choices to make and there will be instances where pre-booked leave may need to be delayed in order to provide continuity of services for patients and support for other members of staff. In these particular circumstances, this position will need to be discussed with the individual in a sensitive manner. All other avenues should be explored with the member of staff before a decision is taken.
Decisions to cancel leave must be very carefully considered as part of emergency preparedness planning and in consultation with local staff organisation representatives.
Organisations should give serious consideration, in partnership with local staff representatives, to those services where a shortage would be operationally critical and cancelling or restricting annual leave would, as a last resort, create additional capacity.
Staff continue to be entitled to their annual leave allowance set out in their terms and conditions:
- Terms and conditions, section 13: Annual leave and general public holidays.
- Medical terms and conditions and model contracts.
It is likely staff will have booked, or plan to book, annual leave during the period of the pandemic. Due to the additional pressure the NHS will face, it is expected that employers will need to consider carefully whether to ask staff to cancel pre-booked annual leave, and/or advise staff that annual leave cannot be booked during certain periods.
Working Time Regulations in relation to annual leave
The overriding principle during this time of national emergency is to ensure NHS staff are well supported and are able to maintain their health and wellbeing, so they are able to provide the care people rely on. Any decision to cancel or delay requests for annual leave should be given very careful consideration, while ensuring safety and care of patients.
The Working Time Regulations 1998 (WTR) provide detail on the issues employers must consider when notifying staff about cancelling any annual leave.
There are specific requirements which include notice periods and consideration of compensation. Employing organisations should review what local arrangements they may already have in place and ensure arrangements are in line with the WTR.
Given that the majority of the NHS workforce is female and more likely to be primary carers, careful consideration should also be given to the equality impact of any cancellation policy, whether the policy could be objectively justified and that organisations consider their obligations under the public sector equality duty.
Carry over of annual leave
Where employees cannot use their full entitlement of annual leave because of the pandemic, employers should consider revising their local policies to exercise maximum flexibilities in relation to carrying over of leave to the next leave year.
New temporary statutory rules introduced by the government to deal with COVID-19 pressures mean that employees who are unable to take their annual leave entitlement due to COVID-19, can carry over up to 20 days (pro-rated for part-time staff) of annual leave over a two year period. However:
- if employees cannot take bank holidays off due to COVID-19, they should use the annual leave at a later date in their leave year
- if this is not possible, bank holidays can be included in the 20 days’ annual leave that can be carried over. This holiday can be taken at any time over a two-year period.
1. We are struggling to accommodate annual leave requests, what should we do?
Annual leave is an important benefit that allows staff to rest and recuperate, especially during this period of significant pressure. Every effort should be made to manage leave requests to ensure all staff can take their leave in a fair and equitable manner, whilst acknowledging that not all requests can be accommodated at any given time. Employers can refuse annual leave requests, and in some circumstances, may have to do so during the pandemic.
2. Are we able to cancel annual leave that’s been pre-agreed?
Only in exceptional circumstances should you consider cancelling an individual’s pre-agreed annual leave. This should be a last resort, having engaged sensitively with the individual and in consultation with local staff side representatives.
You will need to give the individual the appropriate statutory notice and consider whether compensation is appropriate for any out of pocket expenses that the individual may sustain as a result of cancelling their holiday plans.
The equality impact of any decision will also need to be considered.
3. A member of staff has exhausted the option for special leave to address caring responsibilities, can they use annual leave?
Yes, in line with local policies, annual leave or unpaid leave can be considered to support staff with requests for additional time off to fulfil caring responsibilities.
Bank holiday arrangements
1. Given the expected surge in work over the Easter bank holiday, are we able to ask staff who would not normally work these days to come into work as normal?
An organisation’s response to increased patient demand due to COVID-19 may be to run services at weekday levels during bank holidays. Where staff are required to work on the bank holidays you would need to pay them the appropriate bank holiday rates and credit their leave with time off in lieu for the public holiday, to be taken at a later date. Where an employee would normally not have worked the bank holiday (without having needed to book it off) or is a shift worker who has booked it off, the normal notice requirements for cancelling leave would apply.
In the first instance, we would advise that you reach agreement with individuals in order to provide the required level of cover. Only if you have insufficient cover should you then move to require staff to come into work. You will need to take into consideration the personal circumstances of individual staff. It is important to recognise that staff will need time off to rest and recuperate during these challenging times and, where possible, the individual needs should be balanced against the needs of the service, avoiding cancelling of leave where possible.
Working with local staff side to agree an appropriate approach will ensure a fair and equitable response in these difficult circumstances, and ensure continued goodwill should this approach be needed for upcoming bank holidays in May and August.
2. Do staff members retain the right to public holidays when self-isolating or shielding?
Where the public holiday is rolled up into a leave entitlement for shift workers or part-time workers, yes this would be retained. For staff where the public holiday is not rolled up into a leave entitlement, no this would not be retained.
1. We have staff currently on family leave (maternity, adoption or shared parental leave) and they wish to support us during the pandemic and return to work. What are their options?
Where staff are willing to support organisations during the pandemic and work during a period of parental leave, the options employers could consider are set out below.
In any case, employers will need to comply with Workplace (Health, Safety and Welfare) Regulations 1992 and carry out a risk assessment for any employee returning from a period of maternity leave, in particular mothers who are breastfeeding. Appropriate facilities will also need to be provided.
i. KIT or SPLiT days
Employees are able to access ten keeping in touch (KIT) days during a period of maternity or adoption leave, or 20 shared parental leave in touch (SPLiT) days during a period of shared parental leave, without bringing their leave to an end. Employers would need to ensure that payment of any KIT or SPLiT days are made in line with the NHS terms and conditions handbook (section 15) and are reminded that working for part of any day counts as one KIT/SPLiT day.
ii. Temporary suspension of maternity, adoption or shared parental leave
In agreement with the employee, the temporary contractual suspension of maternity, adoption or shared parental leave and pay could be considered. Where this is mutually agreed, this will end any remaining statutory entitlements. The employer would need to make up any loss of entitlement as part of extending the contractual entitlement. No member of staff should suffer a detriment if they choose this option.
On resumption of contractual maternity, adoption or shared parental leave, the remaining entitlement will need to be reinstated. Any lost statutory entitlement will need to be made up and you will need to liaise with ESR around the technicalities of how this will work.
2. We have received an application for shared parental leave and the employee has requested a number of discontinuous blocks of leave. Given the current climate, this will be more difficult to backfill. Do we have to approve this request?
No, employers are not bound to agree requested patterns of leave; however, the employee cannot be prevented from taking the amount of leave that they have requested within the notice. Section 15 of the NHS terms and conditions handbook advises how these applications can be managed.
1. What do we pay staff who are looking after relatives, such as their children as a result of school closures or their relatives as a result of a breakdown in caring arrangements, due to COVID-19?
Where staff are not self-isolating but are absent from work to look after their relatives, employers would need to refer to their local policies and procedures to determine pay. Employers are encouraged to be as supportive as possible when considering flexible working options but to balance this against the needs of the service at that time.
2. A member of staff has confirmed that their care arrangements for an adult dependant have fallen through and they are struggling to make alternative care arrangements, what should we do?
Employers should follow their own existing carer’s leave policies, being flexible wherever possible, while balancing the needs of the service at that point in time
Employers should review their approach within the ICS/STP regional footprint to ensure consistency of regional approach.
3. A member of staff has requested bereavement leave, what should we do?
There are national terms for the bereavement of a child at section 23 of the NHS terms and conditions handbook. For a bereavement other than that of a child, employers will already have local bereavement leave policies in place.
However, for any bereavement, not just COVID-19 related, trusts should be as supportive as possible given the consequences and challenges for staff that, for example, may need to arrange a funeral.
Employers may wish to speak with their neighbouring trusts about their local bereavement policies in cases where staff suffer the loss of a family member or close friend. This may help identify whether local policies are broadly consistent.
4. What do we pay staff whose children are unable to attend school, nursery or childcare as a result of closures, or because they have been sent home to self-isolate, or have COVID-19 symptoms? - UPDATED 16 OCTOBER
Visit our pay FAQ section for more information regarding caring commitments.