The record walkout by nurses and ambulance staff on 6 February was another milestone in the winter of discontent, with further dates planned by the GMB and Unite across February and March.
The strikes have put into even sharper focus the strains the NHS is under from an aging population, an ongoing pandemic backlog and a recruitment crisis.
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For decades, Aneurin Bevan’s promise that the NHS would provide “the best health advice and treatment” has enabled sick staff to return to work as quickly as possible.
But with NHS England waiting lists reaching a record high last October – 7.21 million people waiting for treatment and 2.91 million patients waiting over 18 weeks for treatment – and elective procedures postponed due to the current industrial action, prudent HR leaders and employers should be re-examining how they manage sick leave and look after their staff.
Most immediately, companies have to think about how they manage staff whose sick leave may be extended if their treatment is postponed, and the knock-on effect this may have for their colleagues who may be under additional strain, especially if the position has not been temporarily backfilled.
If you’re struggling because an employee’s return to work is repeatedly pushed back, it’s important to take legal advice before acting.
If they have a disability, you must make sure you don’t discriminate against them because of disability-related absences, while all staff with two years’ or more service are protected from being unfairly dismissed.
I would expect that an employment tribunal would have little sympathy with an employer trying to dismiss someone unable to return to work because their treatment is postponed due to strike action when there is some likelihood that the treatment will take place in the near future.
But if the employer is facing continual delays in the employee returning to work – which could happen with repeated industrial action – such a move may be more justified in the eyes of a Tribunal.
Pragmatic employers and HR professionals should be looking beyond the immediate issues thrown up by the industrial action.
Organisations may need to consider their staffing levels to ensure they have capacity to accommodate long-term sick leave without putting too much strain on the rest of the team, especially as the current recruitment challenges mean retaining valuable employees is a priority.
It may also be time to consider private medical care, both to access medical treatment immediately for staff during the current industrial action to enable them to recover and get back to work, and as a benefit offered to all employees to enhance staff recruitment and retention.
This benefit may become more attractive if access to the NHS continues to be challenging and waiting lists keep growing, especially as employees are increasingly expecting more of employers. However, some staff may not want that benefit as they have to pay tax on it.
There’s no quick fix to the challenges facing the NHS – which means HR leaders and employers need to think prudently and imaginatively about how they can best support the health of their staff as a key factor in ensuring their organisation is robust and resilient.
Pam Loch is a solicitor and managing partner of Loch Law, part of the Loch Associates Group
