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B) During the pandemic

43. There will be a range of human resource issues that will emerge during the pandemic. The main issue will be to build resilience prior to the pandemic and to maintain morale and motivation over a sustained period. It is essential that close contact is maintained with staff side colleagues e.g. Staff Partnership Forum and a partnership working approach adopted. Discussion should take place at an early stage on likely issues with the local staff side. Staff and their representatives should be kept fully informed during the process and the issue should be approached on a partnership basis at local level. In Scotland, this guidance has been discussed within the Scottish Workforce and Staff Governance Committee which has representation from the Scottish Government Health Directorates, NHSScotland, trade unions and professions.

Absence management

44. NHS services and community care experience suggests that the vast majority of staff will approach the pandemic in a spirit of cooperation and commitment. Employers should seek to support and sustain morale during the pandemic and absence management will need to be handled with care and sensitivity.

45. Staff who display symptoms should be sent home and advised not to work until fully recovered. Infected staff would be paid under normal sick pay arrangements. Staff should notify their employer using agreed local procedures. It will be vital to track absence trends due to pandemic flu or due to other reasons. Statutory sickness certification arrangements are being kept under review.

46. Absence due to the impact of school closures should be dealt with on a supportive basis. There may be some scope for support via local networks of childcare coordinators or cooperation between parents, without developing large groups of children as in schools, thereby, facilitating the rapid spread of infection. Schools are however likely to be closed for several weeks and employers will therefore need to consider how best to respond. It is also likely that nurseries will close. It is not practicable or reasonable to expect parents to attend work if they have children who need to be looked after. A member of staff who is concerned about the welfare of their children is unlikely to work effectively.

47. It is therefore recommended that NHS employers should treat requests for paid leave for staff with children aged under 14 favourably under PIN policy guidance, in the event of pandemic related school closures. This should be provided where other arrangements are not practicable. Further extension should be a matter for local discussion. Paid leave should also be considered favourably under local carers' leave arrangements for other dependants. Other requests for leave should be considered on their merits e.g. for disabled or older relatives and bereavement. It should be made clear that any abuse of these provisions would be regarded as a serious disciplinary offence.

48. One particular issue that may arise is that some staff may not attend work due to fear of infection. Initially efforts should be made to convince staff to attend e.g. by direct approaches from clinical colleagues as this may elicit a better response than managerial intervention. It should be stressed that those staff not dealing directly with symptomatic patients are not a high risk. There is not a right to refuse to attend work unless there is a clear health and safety risk to the employee. Employers should however acknowledge the level of fear that a pandemic is likely to generate and seek to persuade rather than penalize. Employers should work with the trade unions and professions to encourage staff to remain at work and put patients' needs first. It is unlikely to be feasible to take disciplinary measures during the pandemic and the view of the staff side should be sought in such circumstances as they may be able to assist.

Disciplinary issues

49. Although agreed local disciplinary procedures will remain in place during the pandemic, NHS services employers should take a supportive approach to recognizing that instances of errors are likely to be greater than in a normal situation. Systems that allow for rapid learning from adverse incidents and sharing of information will be vital. The General Medical Council has indicated that it would expect to operate a "Good Samaritan" principle such that, provided a doctor acted in good faith within their skill and competence, it would not usually anticipate a disciplinary issue to emerge. The Nursing and Midwifery Council statement attached as Appendix One gives some guidance on its position. Staff will also be guided by the Ethical Framework for the response to pandemic influenza (available at http://www.scotland.gov.uk/Pandemicflu ) on their decision taking during the pandemic. There will also be specific advice from the General Medical Council.

50. NHS Boards cannot prevent patients seeking legal options but should reassure staff that they will provide support in such circumstances. Discussions will be held with CNORIS concerning indemnity insurance issues. In England the NHS Litigation Authority has indicated that that it does not believe there would be a substantially greater risk of successful legal challenges to the NHS in the scenarios that may arise during a pandemic. The NHS Litigation Authority has also confirmed that:

• NHS staff will be covered by existing indemnity insurance arrangements during a pandemic. For staff employed in the NHS this means they will be covered by their employers insurance, GP staff are generally also covered by their employers insurance although some staff, e.g. some nurses, are covered by their own insurance. This will apply even if they are working on a different site or seconded to a different employer as long as management relationships were made clear. Temporary staff would also be covered provided there is a clear contractual relationship.
• The NHS Litigation Authority does not believe that there is a substantially greater risk of employers or employees being sued as a result of actions taken during a pandemic as long as a healthcare professional was able to show an appropriate degree of reasonableness in their actions. The Authority believes that the courts would take a sensible view on what was reasonable in the context of an emergency such as the pandemic. Staff should not expect to be at greater risk during a pandemic provided they have not behaved in a reckless way.
• Reasonable steps should be taken to maintain records as would happen normally but the courts will take into account the emergency nature of the context when making judgements. Staff should also seek to operate within the principles of the ethical framework as this will be seen as the governing set of principles during the pandemic
• Where staff or students are working outside their normal role they need to continue to work within their scope of competence and receive adequate training and supervision. Provided these are in place there should not be any greater risks for the employee. Students in particular should be properly supervised. Registered staff should be guided by the statement from the Nursing and Midwifery Council and the forthcoming statement on Good Medical Practice from the GMC.

51. Whilst taking a balanced approach, conduct that places staff, patients or the public at risk should be identified and dealt with robustly. Disciplinary procedures will remain in place and cannot be unilaterally altered. It may be useful to reach local agreements that allow for staff to be suspended, or have temporary restrictions on their practice, if necessary during the pandemic period pending investigations, as conducting hearings during the pandemic is unlikely to practicable. This would be without prejudice in the interests of patient safety. It is vital for example that the NHS anti viral distribution system is not compromised and misconduct in this area should be treated as gross misconduct.

Working flexibly

52. The pandemic may lead to a need for staff to take on new roles or work in unfamiliar situations. The following guiding principles should be observed.

• training up non-registered staff to take on some tasks to free up registered staff for other duties. This should be discussed with local staff side organisations and appropriate protocols followed. It should follow training and be under some form of supervision or if this is not practicable some other clinical support. It should not set a precedent for longer term role changes as issues during a pandemic are very different. Registered staff may also need to take on new roles provided they are within their competencies. One possible example is a role for Care Assistants in administering a possible vaccine following training.

The Nursing and Midwifery Council has developed a statement based on its existing Code of Practice which sets out the general principles which should guide registered nursing staff in carrying out their role during the pandemic. This states for example that:

• "Registrants will not be professionally compromised provided they are competent (and have been assessed as such) to carry out any practice being requested of them. They remain answerable at all times for their actions or omissions"
• Employers should therefore seek to ensure that staff are competent before any duties are delegated to them and the Knowledge and Skills Framework ( KSF) is a useful framework for assessing this. The KSF sets out the expected competencies of staff at various levels and this can be used to identify skills gaps and train up staff as appropriate.

53. There are however currently legal restrictions on some roles e.g. the ability to prescribe and these will remain in operation. For example employers will need to operate the system of Patient Group Directions and train up as many staff as possible to undertake this role. Protocols on this will need to be developed locally and operate within the overall framework of current legislation as highlighted by the NMC.

• The role of medical and other healthcare students during the pandemic will be as an additional resource able to take on tasks within their scope of competence. Local protocols will need to be developed on these issues.
• The General Medical Council is continuing to develop its advice on the principles that should guide medical staff during the pandemic and this will be issued in due course. It will be based on existing Code of Good Medical Practice. It will take into account the ethical framework for dealing with pandemic flu.

- The Health Professions Council has indicated that it would expect registrants to carry out roles as necessary within their competence.

Terms and conditions of service

54. NHS terms and conditions of service will remain in place and it is not intended to use powers to alter employment legislation. It will however be necessary to take a flexible approach at local level on some key issues such as the Working Time Regulations (see below). National guidance cannot anticipate all scenarios that may occur but it may be useful for local organizations to develop their response to the following framework of principles in discussion with local staff side.

-It may be necessary to limit annual leave to sustain services though there should not be a blanket ban on leave.

-Shift patterns and other working arrangements may need to be revised though unsocial hours provisions and payments will remain in force. This means staff should be paid at the appropriate rate for any hours worked.

-where staff are employed on a temporary basis during the pandemic this should be at appropriate rates of pay i.e. Agenda for Change terms where a job covered by the national job evaluation scheme is being undertaken, or other local terms as applicable.

Working Time Regulations

55. The key area where major changes to current practice will be made is in relation to the Working Time Regulations ( WTR) 1998. The WTR will remain in force but their application during a pandemic will need to be reviewed. Legal advice to the Department of Health indicates that the night work limits (including the limit for special hazards), rights to rest periods and rest breaks under the WTR do not apply where the worker's activities are affected by -

(i) an occurrence due to unusual and unforeseeable circumstances, beyond the control of the worker's employer;

(ii) exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer.

56. It is the view of the Scottish Government Health Directorates and the Management Steering Group that a pandemic is covered by these exemptions. In the event of any dispute it would be for the courts and/or enforcement authorities to decide if action taken by an employer was justified taking account of the exceptions in the WTR. Regulation 23 of the WTR also allows for exceptions to certain rules by collective (employer and independent trade union) or workforce agreements. Most local employers in the NHS have agreements that apply the WTR. It is recommended that these should be reviewed to allow more flexibility on the night work limits, rights to rest periods and rest breaks. Some form of compensatory rest should be offered where practicable calculated over an extended reference period. Some form of rest breaks will be necessary if staff are to function effectively and employees need to be advised to take breaks in order to maintain safety. Discussions should take place with local staff side organizations on these issues to seek agreement on policy at local level.

57. Some areas have already developed local policies on these issues. For example, an existing local agreement in Camden and Islington suggests

"In general staff should not be asked to work in excess of 48 hours per week, nor work without appropriate rest breaks. In an emergency situation, it will be important to ensure that staff continue to receive appropriate rest breaks or compensatory rest and that they are not asked to work more than 48 hours on average over a 17-week reference period, in accordance with the Working Time Regulations."

58. There may be some staff however for whom such an approach is not practicable as due to their specialist skills they are likely to be in heavy demand for example, medical staff but also maintenance and IT support staff. 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. This is allowed for under the provisions of the WTR. Staff would need to be approached at the earliest stage practicable once the need for them to work longer hours is identified. This "opt out" should be for the duration of the pandemic only and not applied unless necessary. In some cases staff may already be operating under opt out provisions. Staff should not be subject to any detriment if they choose not to comply with this request and inducements cannot be offered. It is accepted that this approach creates practical problems but it appears to the best option within the regulations. Employers should start to identify such staff now though the opt out waivers should not be offered until the pandemic is underway.

59 The culture of NHS services and community care has traditionally been for voluntary working of as many hours as necessary during an emergency. Unlike other emergency situations in the recent past such as the July 7 bombings in London, a pandemic could last for many months. Excessive working hours cannot be a safe practice in such circumstances and managers have a responsibility to communicate this message to staff. Senior managers should also seek to observe these provisions to avoid making decisions when over tired. In particular the hours worked by staff involved in interventions, operating equipment and in key decision taking should be monitored to avoid excessive working even during the pandemic. In addition, staff should also be reminded of the risks of driving when over-tired and Boards should consider providing local accommodation or transport.

Health and safety

60. The health and safety precautions to be taken in the pandemic will be outlined in separate guidance (see links). As the aim is that all symptomatic people should receive antivirals it is not currently envisaged to give priority to healthcare employees in distribution of antivirals though this will be kept under review. Current policy is that if staff are affected by pandemic flu they should not attend work and should contact the flu line.

Pre-pandemic vaccination

61. Pre-first wave immunisation with an influenza vaccine related but not specific to the pandemic strain might offer some limited, but nonetheless useful, protection. Currently, the UK has very limited stocks of an A/H5N1 vaccine purchased specifically for the protection of healthcare workers.

Pre-pandemic vaccination would be initiated based on national and international expert advice and delivery would primarily be the responsibility of employers. Given sufficient additional stocks, a suitable vaccine could be used to provide partial protection for other workers likely to be frequently exposed to symptomatic patients or key staff crucial to the maintenance of essential services.

Pandemic-specific vaccination

62. As a pandemic will result from the emergence of a new or modified strain, vaccines which are routinely used to protect against seasonal influenza are unlikely to offer protection and it will not be possible to develop a matching vaccine until the emerging influenza strain has been identified.

The Government has finalised advanced supply contracts with manufacturers to make sufficient supplies of a matching vaccine available as soon as it is developed and is also working actively with the international community and pharmaceutical industry to speed development, testing and licensing. However, it may take four to six months before a matching vaccine is available and evaluated for safety, and considerably longer before it can be manufactured in sufficient quantities for the entire population given that international demand will be high.

Realistically, it is therefore unlikely that a matching vaccine will contribute much to dealing with the initial wave of a pandemic, unless its evolution, or the effectiveness of early control measures, result in a significantly slower developing pandemic than anticipated. However, it could be an important tool in preventing further cases, particularly if a second wave occurs.

63. Staff concerns over issues such as provision of face masks and prevention procedures should be discussed in local forums. Access to impartial advice and working with local trade unions will be vital to ensuring health and safety is maintained. The Health Protection Agency, Health Protection Scotland and the Health and Safety Executive are producing detailed guidance on key issues. At local level employers should set up arrangements to address health and safety concerns. Occupational health services should be able to provide counseling and other support services. A range of security issues may arise during the pandemic particularly in relation to the safety of ambulance staff and staff working in the community and in accident and emergency areas.

Support to those working in NHS services

64. Maintaining morale and motivation of staff will be essential during a pandemic. The NHS services have an exemplary record in sustaining services in emergency and stressful situations and responding to emergencies. Pandemic influenza outbreak will however create sustained pressure lasting weeks and possibly months.

65. Experience in previous international pandemics suggests that tackling staff fears will be vital. Clear communication from trusted sources, honesty and open discussion of fears have been shown to be the most effective methods of sustaining morale. Electronic communication methods may need to be used to reduce risks but face to face meetings will also have a key role in sustaining group morale. In practical terms NHS Boards should seek to ensure they will have some round the clock catering and other facilities for staff working on site. The possibility of sleeping in on-site accommodation should also be evaluated as some staff might need to stay on site for extended periods. Communication systems should be able to be used by staff to maintain contact with families. Counseling services and religious facilities may be in high demand due to the stress of the pandemic pressures. Staff may also need a means of exploring ethical concerns and getting support for taking decisions.

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