NHS workforce: working flexibly to assist with demands of the service

Asking staff to delay taking their annual leave

In respect of pre-arranged approved annual leave, a blanket ban on employees taking that pre-arranged annual leave is rarely advisable. Instead, an employer should seek an agreement with the affected employees to defer taking any annual leave at a time when resources are limited. If the reasons for the request are put to the employee they are far more likely to consider either cancelling their leave to take it at a later date or only taking fewer days. You could also consider incentives for such requests. For example, if it is anticipated that there is to be a shortfall of staff over the coming bank holidays you could consider asking employees to work those bank holidays in return for two days additional leave to be taken at a later date. In offering such an incentive, you should be careful to ensure that the offer is made in an open and non-discriminatory way. 

The Working Time Regulations 1998 (WTR) do contain powers for an employer to prohibit employees from taking leave on certain dates if prescribed notice is given. There is an ability to vary the notice procedures set out in the WTR with a local agreement, but there is little evidence of such local agreements in place in the NHS.  In any event, we would advise that it is always preferable to seek to agree any changes with the affected employees to preserve the employment relationship and to avoid any claims that the employer is in breach of the implied duty of trust and confidence.

Seeking to increase or vary hours worked

In order to increase capacity in terms of working hours across the workforce it might be necessary to consider asking staff to work increased hours or to move from working standard days (ie Monday to Friday) to shift patterns.  

The starting point with any of these considerations is what does the contractual relationship allow? A contract is perhaps unlikely to expressly deal with the need to increase working hours in this (or any similar situation). In the absence of an express contractual power to make these changes, an employer would need to rely on the needs of the service and a reasonable management instruction.  An agreement with the employee to vary terms in respect of working hours on a temporary basis would be the best way forward.  The employer may also be able to offer short term financial incentives such as additional leave to be taken at a later date.  An employer seeking to vary terms by agreement would also need to take on board individual circumstances, and consider any protected characteristics such as disability and caring responsibilities.   

Do keep in mind that if you are proposing to change the terms and conditions of 20 or more staff within a 30 day window, there is also the requirement to collectively consult with the recognised trade unions. 

Redeploying staff 

In extreme cases it might be necessary for your organisation to consider redeploying staff into different roles to either assist with covering sickness absences or other types of leave. Where an employer is asking a Nurse to redeploy to another ward undertaking similar duties within the same employing Trust (or in a comparable scenario) this is unlikely to require detailed consideration.  However, in a situation whereby a CCG is considering redeploying staff from their substantive role to a role with another NHS organisation, or an NHS Trust is seeking to redeploy staff into very different roles, further consideration will be required. 

As above, you should consider what the contractual position is and whether there is either an express or implied term permitting the proposed redeployment. If you are relying on the implied term that an employee should comply with the reasonable instruction of their employer, the instruction must be reasonable and in circumstances that will require staff to work in a more Acute setting that will include a risk assessment. Consideration should also be given to whether the duties that the individual is being asked to pick up are commensurate with their existing roles.   

For example, if a Trust is redeploying staff to another organisation both the Trust and the receiving organisation have a duty to undertake a risk assessment given that both organisations have health and safety obligations under the Health & Safety at Work Act. When considering such assessments you would need details of where the staff member will be working, the induction and training to be provided, whether PPE is available, etc. If a staff member sustains a personal injury whilst undertaking duties at a receiving NHS organisation, that organisation will be insured under the NHS Resolution’s Third Party Liabilities Scheme.    

Challenges

It might be that staff are either reluctant to defer their pre-approved annual leave, vary their contracted hours or be redeployed to alternative roles. Considering the points set out above will put any employer in a better position to put those requests to the staff as reasonable management instructions, but it may still meet protests. In such circumstances rather than jumping to a disciplinary process for failure to obey a reasonable management instruction, the employer will need to clearly communicate its expectations and fully engage with staff and the trade unions. There may be good reasons why the individual concerned doesn’t wish to increase their working hours or their exposure in high risk settings. Some of those reasons could be related to a pre-existing health condition they have chosen not to disclose or needs of others they are responsible for. Each case should be considered on a case by case basis.