Terms and Conditions (Version 2: as at 6 April 2020)
The aim of these terms and conditions is to ensure that the operation of national T&Cs reflect the unprecedented nature of the pandemic and the reliance on our NHS staff at this difficult time. This is temporary guidance and will be regularly reviewed during the COVID-19 emergency period with amendments made as necessary.
Due to the exceptional circumstances, it has not been possible to follow the usual processes of co-production with our trade union partners. The NHS Staff Council Executive have, however, provided input into the national guidelines and will be involved in the development of further updates.
The following key areas have been summarised for staff to ensure they are aware of changes which may affect them. The full terms and conditions can be accessed via this linkhttps://www.nhsemployers.org/covid19/staff-terms-and-conditions
Sickness absence pay
Normal sickness provisions as detailed in the NHS terms and conditions of service handbook for Agenda for Change (AfC) staff (section 14, England), will be paused for the duration of the pandemic for sickness absence related to COVID-19.
For normal sickness absence that is not related to COVID-19, normal provisions will apply. Staff who have self-identified as being in the highest clinical risk group but who have not received a letter either centrally by the NHS, by secondary care clinicians or their GP will be recorded as normal sickness absence. Individual circumstances will be monitored on a regular basis and support will be provided by the Trust’s Occupational Health team, People Asset Management (PAM).
For AfC staff whose sick pay is usually calculated using only their basic salary, for the duration of the pandemic they will be paid sick pay as though they are working if they are off sick with COVID-19. Where staff work shifts that attract enhanced payments, they will be paid what they would have worked where this is known. If this is not known they will be paid an average of the previous 13 weeks’ pay. Terms for medical staff already include full pay for sickness absence.
Any sickness absence related to COVID-19 for AfC and medical staff will not be counted for the purposes of any sickness absence triggers or sickness management policies.
Returning to work following sickness absence
Staff are required to ring the Central Absence Reporting line on 0191 814 4011 or email email@example.com to advise that they are fit to return to work. They are also required to ring their line manager to confirm future shift requirements.
This will be logged in the ESR system.
Any sickness absence related to COVID-19 will not be counted for the purposes of any sickness absence triggers or sickness management policies.
Staff who are self-isolating but are otherwise well enough to work should agree with their line manager whether working from home is a possibility. Line Managers will consider the work that it is possible to do remotely.
Staff will earn what they would otherwise have earned if they were not in isolation, which will include any pay enhancements. This will be agreed using the usual practices for calculating full pay.
Pay for Bank workers
The Trust has agreed to pay bank workers who are self-isolating on a “look back” approach. This means that payment will be made on the basis of the average the bank member would have earned per week over a period of 13 weeks.
Payment will be arranged on the normal pay date, using agreed rates for any shifts booked at that point for the period of self-isolation.
This applies to staff who have a substantive contract with the Trust and to ‘bank only’ staff.
Regardless of whether staff hold a substantive contract and do additional work through an agency, or are an “agency -only” worker, no earnings from agency shifts will count towards the calculation of full pay for the purposes of self-isolation or sickness absence.
Agency workers with no substantive contract with an NHS employing organisation
Where an individual has no substantive employment with an NHS employing organisation, they will not be entitled to any pay from the NHS. Individual agencies should determine their own approach to pay for employees that have to self-isolate.
The same principle applies where an individual is operating through a personal services company and contracting directly with an NHS providing organisation.
Substantive staff undertaking agency work outside of their substantive employment with the NHS
Where a substantive employee works additional agency shifts, the individual will be paid what they would have earned under their substantive NHS contract.
Any earnings staff would have earned via an agency are not included in the definition of full pay. For example, the individual’s full pay would be what they would have earned under their substantive employment, not inclusive of any agency earnings.
Subcontractors who have to be physically present at an NHS facility to carry out their duties will receive full pay whilst self-isolating. This may include certain staff groups involved in soft facilities management, hard facilities management, wholly-owned subsidiaries, and other relevant outsourced services.
Returning to work following self-isolation
Staff will be required to ring the Central Absence Reporting line on 0191 814 4011 or email firstname.lastname@example.org to advise that they are returning to work. They are also required to ring their line manager to confirm future shift requirements.
This will be logged in the ESR system.
If an individual member of staff is told that they are likely to be away from work for longer than a seven or 14 day period, they should contact the Central Absence Reporting line as above.
This may be the case for at-risk groups who have been advised to isolate for longer.
Staff who are not advised to self-isolate, but have concerns about returning to work
If staff are not advised to self-isolate and are neither ill nor diagnosed with COVID-19, the Trust will explore with the member of staff any concerns they may have about returning to work and careful consideration will be given to options that could allow the member of staff to work from home, or in other healthcare settings that would allow them to use their skills/experience.
If staff remain concerned, and if resolution is not possible other local policies may be applied.
Annual Leave Entitlements
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.
Cancelling Annual Leave
At the current time staff are encouraged to take their annual leave if possible in line with the usual local authorisation processes and are not required to cancel any booked annual leave. If there are issues in particular areas they will be dealt with on an individual basis.
Due to these exceptional circumstances, there may be instances in future months 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 will be discussed with the individual in a sensitive manner. All other avenues will be explored with the member of staff before a decision is taken.
Decisions to cancel leave will be carefully considered as part of emergency preparedness planning and in consultation with local staff representatives.
Outstanding Annual Leave 2019/20
If staff have any untaken annual leave for the 1 April 2019 – 31 March 2020 period they can take the opportunity to be paid for any or all of outstanding annual leave. This will authorised at a local level by line managers who will make arrangements for it to be paid via payroll.
It should be noted that Statutory rules mean that 20 days of annual leave must be taken each year.
For the duration of the pandemic a maximum of 5 days’ paid carers leave will be authorised. It is important that we ensure that our NHS workforce is available to attend work and would ask that every effort is made to ensure that alternative options are explored if possible ie, another household member providing the support.
Carers leave is not necessary for any type of Covid-19 absence, which will be recorded in line with national guidelines for sickness absence and self-isolation as described above.
Annual leave or unpaid leave will be considered to support staff with requests for additional time off to fulfil caring responsibilities.
Additional work to support the emergency
Additional work above full-time contracted hours
The Agenda for Change and medical and dental contracts specify how additional work should be paid.
For non-medical staff overtime payments will be paid in line with Agenda for Change for staff on Band 1-7. Staff at 8a and above (plus those on local pay) will be able to claim time off in lieu (see below).
Medical and dental staff would be paid for any additional hours in accordance with their contractual terms and conditions of service (TCS).
Note that for all staff, any hours worked up to full time are pensionable, but any hours that attract overtime pay are not pensionable.
Additional hours worked above contracted hours – part time staff
For Agenda for Change staff, any additional hours worked up to 37.5 per week (standard hours) will be paid at plain rate plus any applicable enhancements as set out in section 2 (England). This applies in instances where part time staff work in excess of their contracted hours, but who may not have worked in excess of 37.5 hours.
Note that for all staff, any hours worked up to full time are pensionable, but any hours that attract overtime pay are not pensionable.
Time off in lieu
Time off in lieu may be accrued for additional hours worked for staff at Agenda for Change 8a and above (plus those on local pay). It may not be possible to authorise time off during this period therefore payment or accrual over a longer period will be considered. This will be agreed with local line managers.
Staff will be paid unsocial hours payments in line with the national terms and conditions of employment.
All time on Saturday (midnight to midnight) and any week day after 8pm and before 6am
- Band 1 Time plus 47%
- Band 2 Time plus 41%
- Band 3 Time plus 35%
- Bands 4 – 9 Time plus 30%
All time on Sundays and Public Holidays (midnight to midnight)
- Band 1 Time plus 94%
- Band 2 Time plus 83%
- Band 3 Time plus 69%
- Band 4 – 9 Time plus 60%
Unsocial hours payments will be worked out using basic salary.
At this unprecedented time of national emergency, it is vital that we maximise the number of staff available to help fight the virus. To support the mobilisation of staff who can assist in the pandemic, the 20% requirement for ‘off the job’ training for NHS and social care staff on apprenticeships is temporarily suspended until further notice.
Staff can be deployed for this time within the Trust and will not be disadvantaged in doing so on their qualifications.
In the majority of cases pay will not change as the work the apprentice would be doing is of the same level. Where work is of a different level, then the appropriate rate for the job will be paid.
During the pandemic some pre-registration nursing and midwifery students as well as medical students will join the NHS workforce to assist in the national effort.
These students will be paid for any work done in a way which reflects their responsibilities (in line with the NHS Job Evaluation Scheme). The Trust will discuss with students their level of remuneration. Working hours and patterns will be agreed locally.
Students will be given a contract in the same way as other temporary staff members, reflecting the NHS Terms and Conditions of Service.
Re-deployment of Staff
In line with business continuity plans and national guidance individual roles and functions may be defined as essential or non-essential. During this period some functions may cease for a period of time. This will release staff who can then be redeployed into different roles; this may include, for example, administrative and managerial staff as well as practitioners whose services have been stood down. It is anticipated that clinical staff who work within Corporate services will be asked to move into clinical roles in line with their profession.
Staff will not be expected to undertake roles for which they are not competent but there is an expectation that staff will respond positively to learning new skills.
Consideration will be given where possible to relevant skills, experience and personal circumstances. During the COVID-19 outbreak staff could be assigned to different roles, functions or a change of work location. Adequate departmental training and induction will be provided to staff to equip them for the role they are assigned to. Uniforms and protective clothing will be supplied where appropriate.
In the event of a change in work location/base, travelling costs will be reimbursed in line with Agenda for Change Terms and Conditions (as detailed in Section 17, NHS Terms and Conditions of Service Handbook) or Medical and Dental Staff Terms and Conditions as appropriate.
Pay and conditions will be unaffected by this arrangement, although where an individual has moved temporarily into a higher banded post, they will be paid accordingly.
Returning to work in the NHS
Retired staff who return to work in the NHS
The mobilisation effort means that staff will be working in a range of settings, not necessarily returning to their old employer. However, most may be returning to the pay band before they retired. The intention is to ensure that in these exceptional circumstances Trusts can quickly deploy staff and that staff have clarity on the pay they can expect to receive when they return to work in the NHS.
Agenda for Change Staff – during the emergency period, if staff return to work in roles covered by Agenda for Change terms and conditions for substantive staff, they will be paid at the top of the appropriate pay band for the role they are fulfilling, providing they previously worked in that pay band or higher.
Medical Staff – if they retired from a medical role, they will be paid on the appropriate contract for the role they are fulfilling, providing they return to the same level of responsibility.
All staff that return to work in the NHS after retirement will be paid the substantive rate for their role. The pay point should not be lower than the pay point before they retired unless the staff member wishes to work in a more junior role (see below).
The actual amount and the frequency will be confirmed by the Trust.
Staff that want to return to a more junior role
If staff want to return to a more junior role than the role they retired from, they will be paid the top of the pay scale in the more junior role.
Staff that choose to return to work during maternity, adoption and shared parental leave or end their leave early
The NHS offers generous occupational maternity, adoption, and shared parental leave pay, well above statutory levels. However, for staff that choose to work when they would otherwise have been on leave, it is important that they do not lose their contractual entitlement.
Staff can work up to 10 Keeping in Touch (KIT) days whilst on maternity or adoption leave, without bringing their maternity/adoption leave to an end. Staff on Shared Parental Leave can work up to 20 Shared Parental Leave in Touch (SPLiT) days without ending their shared parental leave. This means that many employees will have access to up to 30 days where they can work without bringing their paid family-related leave entitlements to an end.
Should employees wish to work more than this, ordinarily it would end their statutory and contractual family-related leave and pay entitlements. NHS organisations cannot change the legal rules around statutory payments and leave, but should staff wish to end their maternity, adoption or shared parental leave early to assist in the pandemic, the Trust will consider flexible options so staff do not lose out on any of their contractual entitlements.
This might, for example, include allowing an individual to take contractual paid leave in lieu of the weeks of family-related leave and pay that the employee gave up to support the NHS during the pandemic at a later date.
The rights and special protections that apply to women on maternity leave and to parents on other types of family-related leave will not apply to periods of contractual leave taken in lieu of any weeks of maternity, adoption and shared parental leave that an employee gives up when they end their leave early. The appropriateness of putting such arrangements in place will be carefully considered on a case by case basis (with risk assessments where necessary) and only where the Trust and the individual employee consent and should not be forced on individual employees.
Staff that have not retired, but just left the NHS
If staff have not retired, but left NHS employment, if they return to work in roles covered by NHS national terms and conditions of service, they will be paid at the top of the appropriate pay scale for the role they are filling, providing they are returning to the same level of responsibility.
They will be paid the substantive rate for the role. The actual amount and the frequency will be confirmed by the Trust.
Individuals who have not retired but return to NHS service are automatically enrolled into the NHS Pension Scheme (the Scheme) when they re-enter NHS employment with an NHS organisation.
Membership of the Scheme is voluntary, and staff can opt-out should they wish. If an individual opts-out within the first pay period after starting NHS employment, the individual is treated as having never joined the Scheme.
High-earners should be aware of potential pension tax implications of building up further pension, for example, an individual may have a protected lifetime allowance limit. More information can be found in the NHS Pension Scheme section of this guidance.
Impact on pensions when staff return to work
If staff have already taken their pension, the Government is removing any restrictions on the amount of work they can do without losing any of their pension during the emergency.
If they retired from the 1995 NHS Pension Scheme, they will no longer be limited to having to work 16 hours a week in the first four weeks after retirement.
For staff that want to take partial retirement from the 2008 and 2015 pension schemes, they will not be required to reduce their pay in order to claim pension.
If staff are a Special Class scheme member with the right to take their pension unreduced at age 55, they will no longer be subject to the current restrictions called abatement in the amount of work they are allowed to do before losing their pension between the ages of 55 and 60. This new rule will apply both to retired staff returning to the NHS and those who have already returned to work. Special Class status can be held by nurses, midwives, physiotherapists and mental health officers.
The following factsheet defines Special Class eligibility: https://www.nhsbsa.nhs.uk/sites/default/files/2018-10/Special%20Class%20status%20member%20factsheet-20181017-%28V7%29%20.pdf
NHS Pension Scheme
Staff in receipt of their NHS Pension Scheme benefits
It is important to note that all pension and re-employment income is subject to income tax, changes in pensionable pay may affect the level of Pension Scheme contributions employees pay.
More information https://www.nhsbsa.nhs.uk/sites/default/files/2019-04/Tiered%20employee%20contributions%20from%202015-2016%20-%20employer%20factsheet-20190329-%28V6%29%20.pdf
The COVID-19 Bill will provide powers to suspend the 16-hour rule which currently prevents staff who return to work after retirement from the 1995 NHS Pension Scheme from working more than 16 hours per week in the first four weeks after retirement. The Bill also provides powers to suspend abatement for special class status holders in the 1995 Scheme. It also suspends the requirement for staff in the 2008 Section and 2015 NHS Pension Scheme to reduce their pensionable pay by 10% if they elect to ‘draw down’ a portion of their benefits and continue working.
These measures will allow skilled and experienced staff who have recently retired from the NHS to return to work, and they will also allow retired staff who have already returned to work to increase their commitments if required, without having their pension benefits suspended.
Staff who retire from the 1995 Section and return to work are unable to re-join the NHS Pension Scheme (NHSPS), but employers must provide an alternative pension arrangement in line with auto-enrolment legislation. Staff in the 2008 Section or 2015 NHS Pension Scheme can re-join the scheme whilst in receipt of their benefits and build further pension. Such eligible staff will be auto-enrolled into the NHS Pension Scheme on their return to work but can opt-out should they wish.
Impact of pension tax on staff increasing their hours and performing additional sessions
The Government recognised that the tapered annual allowance has caused many doctors to turn down extra shifts for fear of high tax bills.
The Chancellor confirmed at Budget (11th March 2020) that both annual allowance taper thresholds will be increased by £90,000, removing anyone with income below £200,000. The measure will take up to 98% of consultants and up to 96% of GPs out of the taper altogether, based on their current NHS income. From 6 April 2020, staff can earn an additional £90,000 before reaching the new taper threshold. This tax measure applies to everyone, including senior managers and clinicians within the NHS. More information here https://www.gov.uk/government/publications/budget-2020-documents
For the remainder of the 2019/2020 tax year, NHS clinicians can take advantage of a special scheme implemented by NHS England and Improvement to preserve clinical capacity amid the increased pressure on services during the winter period. The scheme compensates NHS clinicians at retirement for the effect on their pensions of annual allowance tax charges incurred in 2019/2020.
The NHS Pension Scheme rightly provides generous retirement benefits for NHS staff. Where this means tax is incurred, then the ‘Scheme Pays’ facility provides a proportionate way to settle the tax charge without needing to pay cash up front. Staff will still have built up valuable pension benefits after the Scheme Pays charge has been deducted. Further information on Scheme Pays can be found here https://www.nhsbsa.nhs.uk/sites/default/files/2018-12/Scheme%20Pays-Election%20Guide-20181217-%28V1%29.pdf
NHS employers are well placed to support doctors in understanding their tax position and how their NHS work can best serve their financial interests. Some NHS trusts already provide access to tailored information and expert advice, and we will work with NHS England & Improvement and NHS Employers to help employers engage with staff in managing the tax implications of their NHS work. It should be noted that NHS organisations cannot provide tailored financial advice, which should be accessed through an Independent Financial Advisor. Examples of best practice can be found here:
Access to the NHS Pension Scheme for temporary staff
If staff hold a contract of employment with an NHS employer and are on payroll, they will be auto-enrolled into the NHSPS unless they choose to opt out. Staff employed through a third-party are not eligible to join the scheme.
Working hours and the working time regulations
The Working Time Regulations (WTR) 1998 will remain in force during the period of the Covid-19 pandemic but their application will need to be reviewed at a local level.
Senior managers will seek to observe these provisions. In particular, the hours worked by staff involved in interventions, operating equipment and key decision-taking should be monitored to avoid excessive working even during a pandemic.
Where staff are working long hours more flexibly the Trust will provide an appropriate level of supporting facilities (rest areas, accommodation, access to food and drink, toiletries etc as required) to enable the safe and effective provision of services during this period. There should be no requirement for staff to sleep on site, but where there are sleep facilities available for staff who wish to use them, this will be managed via existing or adapted local policies with increased infection control measures.
Where it is necessary to maintain patient services, critical staff will be identified and approached at the earliest stage practicable to discuss the need to ‘opt out’ when the need for longer working hours has been identified. This ‘opt out’ should be for the duration of the pandemic only and should not be applied unless absolutely necessary. In some cases, staff may already be operating under opt-out provisions. Staff will not be subject to any detriment if they choose not to comply with this request and inducements cannot be offered. Staff can also choose to opt back in.
Under the WTR the night work limits (including the limit for special hazards), right to rest periods and rest breaks under the regulations may not apply under the following scenarios, known as ‘exemptions’:
- an occurrence due to unusual and unforeseeable circumstances, beyond the control of the employer, or
- exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer.
Notwithstanding the legal position on exemptions, it is recommended that employers engage in discussions with a view to reaching agreement on how the
WTR can best be applied during this period of emergency.
Regulation 23 of the WTR also allow for certain rules to be modified or excluded by collective or workforce agreements. Most employers in the NHS have local agreements that apply the WTR so discussions on modifying or excluding relevant provisions will need to take place locally. Some already allow ‘opt outs’ for some staff.
It is recommended that agreements should be reviewed to allow more flexibility on the night work limits, right to rest periods and rest breaks. In particular, where staff work beyond the length of shifts laid down in the regulations, Regulation 24 of the WTR specifies, and Department for Business, Energy & Industrial Strategy (BEIS) and Health and Safety Executive (HSE) advice is, that wherever possible, an “equivalent period” of compensatory rest should be taken before the next shift begins. These provisions remain in force.
It is important rest breaks can be accommodated wherever possible, to ensure staff are able to function effectively and safely. Discussions should take place with local staff-side organisations on these issues to seek agreement on policy at local level. For example, on working hours, reference periods can be extended to up to 26 weeks without agreement or up to a maximum of 52 weeks (with agreement)
However, during the peak period of the pandemic, even a 52-week reference period may not be practicable for some specialist clinical staff who will be in heavy demand. In addition, senior staff may be required to be available to provide guidance and leadership. In these cases, it may be necessary to ask individual staff to voluntarily waive their right to not work more than 48 hours a week to allow for flexibility. It is recommended that this provision should only be used in exceptional circumstances.
Agenda for Change Pay Progression arrangements
For the duration of the pandemic, the usual arrangements that require staff to demonstrate or show that they meet the requirements for the role will be paused. See Annex 23 https://www.nhsemployers.org/tchandbook/annex-21-to-25/annex-23-pay-progression-england
The Trust will continue to ensure that staff are appropriately registered, DBS cleared and safe to work. This means that it will arrange to ‘open’ pay step points when they become due, unless there are concerns that cannot be resolved through, for example, further support/training. Staff have the right to appeal if they disagree with any local decision about pay progression. The presumption is that staff should progress to the next pay step point.
Supporting Professional Activities (SPAs) for Consultants and SAS doctors
SPA time needs to be re-prioritised in these exceptional circumstances, in order to create capacity for clinical care.
However where doctors are working outside of their customary clinical roles, the opportunity for continued training, supervision, feedback and reflection is essential to continuing clinical safety. Similarly Consultants and SAS doctors might have a role in supervision of the junior doctors, which should continue.
Doctors could also agree with their managers where time may be made available for clinical or non-clinical work supporting the COVID-19 effort.
Private medical work
Employers should discuss with their doctors any private medical commitments that could be postponed so that they are able to provide additional capacity to the NHS during the period of emergency.
Staff whose promotion is on hold due to COVID
Individuals who have been offered another post within the Trust at a higher banding prior to the pandemic and are unable to move to their new post will be paid at the higher level. This will be from the date all clearances have been received and the contractual notice period has elapsed.