The BASW Advice and Representation (A&R) service is available to all members for support with work and regulatory matters. Those who subscribe to SWU membership can also access the support of the Union via the A&R team.

We have adapted our services to respond to member enquiries throughout the coronavirus pandemic and are here to offer support during Covid-19. 

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Lien Watts Head of Advice and Representation - update

We have set out some Frequently Asked Questions below and will continue to add to these, so please do keep checking in with your queries.  Please don’t forget to view the latest BASW Coronavirus updates which include our latest action to support social workers and resources developed to support you.

The A&R team are professional social workers with knowledge and experience of employment law, management and providing professional and regulatory help.  Members of the team act for the Social Workers Union (SWU) as Trade Union officials for SWU members.  SWU has issued important health and safety advice for members during Covid 19 which is endorced by BASW.

If you are unsure of any of your employment rights or want to talk through any specific advice in relation to Coronavirus, or any other employment issue that you may wish to discuss, please do not hesitate to contact the Advice and Representation Team or call us on 0121 622 8413. 

 

Navigating the advice

There are a number of excellent areas of advice for social workers out there, SSSC, Social Work England, NISC, SCW, Government sites, Health and Safety etc. and of course, the BASW site itself. It is important to set aside some time to consider the issues that pertain to your situation.

We are talking to lots of social workers who are finding the amount of information overwhelming, this makes deciding how to interpret the information all the more difficult. Our Advice and Representation team have been fielding calls every day to provide you with the relevant pieces of guidance and make our advice meaningful for you.

Some tips on searching for relevant guidance.

  • Think about your role and how the covid-19 has impacted
  • Consider your tasks and how you are NOW doing them
  • Make a list of the concerns or issues that have arisen
  • Are they task related?, are they travel related. Environmental, risk related?
  • Once you have been able to step aside and think about what the priority issue is….it is then much easier to access the advice from the relevant source
  • It will often be the case that you have to cross reference some advice such as NHS advice on health (PPE etc) and the working from home advice – but you are not in that situation alone – your employer has responsibilities, you have personal and professional responsibilities.
  • It is helpful to bookmark or copy and paste the advice for your use.
  • Do not be afraid to share the guidance or advice with other colleagues – this helps form a collective view of that guidance.
  • If you have read the advice do not be afraid to ask your employer to clarify your understanding of how that guidance should be implemented, be specific and ask them to be too !
  • If you and your employer cannot agree on how to interpret the guidance you can assert your understanding by emailing your manager and being clear about what you believe would be appropriate and why.  This is not always going to resolve conflicts however, it is the first step in being clear about your expectations of your employer.

Frequently Asked Questions

The A&R team is here to offer support during Covid-19

Does my employer have to provide PPE (Personal Protective Equipment)?

The Health & Safety Executive has put out the following leaflet in regard to PPE: https://www.hse.gov.uk/pubns/indg174.pdf. The Social Workers Union (SWU) have developed a health and safety statement during Covid-19 setting out that social workers are key workers and should be provided with the same PPE that would be provided to any other professional in the same set of circumstances.  We are also recommending that you work with your team and your management to develop creative ideas to achieve client care without putting yourselves at risk. BASW’s home visits guidance has been developed to help social workers and their employers manage the risks of home visits during the Covid-19 risk

 

I’ve been told that I can no longer do certain statutory tasks in my role.  Won’t this potentially put my registration at risk?

Please check the webpage of your regulator for guidance on how the Coronavirus outbreak is going to impact on social work regulatory body standards.  SWU are recommending that you document what you are doing or are unable to do, keep track of agency instructions on the matter and we will support you if anything does come up for you at a later date.  Just make sure you are keeping a clear paper trail.  You can find more information about the Coronavirus Act here:  https://www.gov.uk/government/publications/coronavirus-bill-what-it-will...

 

How will we know at the end of all of this whether the advice we followed on any given day was the accurate government advice for that day? 

At SWU, we are keeping a daily log of the government advice that has gone out for that particular day so that, in future, if any issues arise for our members in their employment, we will have further evidence to support them.  BASW is also providing a hub of updates on the website.

 

My employer is saying that I must prove that I (or members of my household ) are in the high risk category and therefore need shielding, but my GP isn’t sending out letters what do I do?

We are aware that some GP’s are not sending out letters, you should not need to provide evidence of this to your manager in these unprecedented times.

 

My employer has told me that I need to undertake hospital visits, and although my partner is vulnerable, he does not need shielding . I would rather not expose him to more risk, what are my rights?

Your employer still has a duty of care towards you, and health and Safety legislations still applies.  Please read the SWU Health and safety during Covid 19 position statement  on the website and also BASW guidence for hospital social work with adults during Covid-19 .  You could ask to work remotely and for this to be reviewed in a few weeks time.

I am being asked to continue to come into the office to provide a ‘presence’, despite the fact that we have the equipment and systems to enable us to work from home. What should I do?

My employer has said I need to work in the office rather than at home, but has not undertaken any risk assessments or a deep clean, do I have the right to ask for this?

Your employer still has a duty of care towards you, and health and Safety legislations still applies.

The government guidance is explicitly clear – where staff can work from home, they should work from home. Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.  Not only does this protect the staff themselves, but it avoids the risk of continued transmission of COVID 19.

It is advisable to seek clarification from your employer as to why you are being asked to come in to the office.

Send an email asking why there is a particular need for a ‘presence’ and what tasks are there that they want you to do in the office that cannot be done at home? Ideally, this email should be signed by all staff members who are being asked to come into the office.

If there is no clarification on why you are being asked to come into the office, or the explanation seems unsatisfactory, it would be advisable to raise this with higher management and to raise the issue with the health and safety representative in your workplace. 

Read the SWU Health and safety during Covid 19 position statement  on the website.  It is recommended that risk assessment are carried out and you have the right to be protected from illness or injury  at work.

There are legitimate reasons for me to have to be in the office at work. What should my employer be doing?

Where staff have already been provided with the equipment to enable remote working, there are likely to be few legitimate reasons as to why staff have to be in the office.

It may be that you are based in a hospital team in which your regular presence is required on the wards for assessment or that your organisation does not have the facilities or infrastructure to enable remote working.

Where there are genuine, legitimate reasons for staff to be in the office, then staff will need to attend. However, there should be a risk assessment carried out of the office environment and social distancing measures should be followed at all times.

High quality cleaning should be done regularly. Anti-viral (usually alcohol based) sanitising wipes need to be readily available and hot desking should be avoided if at all possible. If it does occur, thorough cleaning is necessary between uses.

If pool cars are being used, anti-viral sanitising wipes should again be made available. See the government guidance.

I am a social worker working with adults in the community. Our team have been asked to undergo training to enable us to carry out personal care tasks and administer medication. Is this appropriate?

We are in unprecedented times dealing with an unprecedented situation – it is inevitable that all key workers are going to have to ‘step up’ and may have to carry out tasks that would not usually be within their remit.

Social workers are no different in this scenario and there is no doubt that most social workers, who are driven and professionally committed to protect and support those who are most vulnerable in society, will be prepared to step up and help out wherever is needed and reasonable in this crisis situation.

Social workers have a number of key skills that can be utilised in times of crisis and disaster. This includes the current COVID 19 crisis. We have the assessment skills to identify those that are vulnerable and at risk, the interpersonal skills to offer support and the organisational skills to refer people to the right support and co-ordinate the right support being provided to the right people.

These skills could be used by employers to enable social workers to co-ordinate support and supplies being provided to those in the ‘at risk’ groups in local communities. They could be utilised to increase support to those who are particularly vulnerable at this time, such as people living in domestic violence situations, people suffering with mental health problems or families who are socially isolated.

Social workers are also already providing essential statutory frontline services, so may clearly struggle to regularly carry out additional tasks that they are not trained or experienced in doing.

As much as possible, social workers should be able to focus on essential assessments, care planning, reviews and safeguarding that keep people safe and able to promote ethical and human rights based practice including in multi-professional contexts.

Social workers may be asked to carry out roles that they are not trained to do and are outside of their remit - this is something we have seen happening when advising members and there are a number of key issues to consider in these scenarios. In this particular situation, if staff are asked to carry out personal care, it is paramount that the right questions are asked in order to ensure safe practise. If social workers are asked to do personal or home care, they should have the guidance and equipment specified in Public Health guidance. 

An email should be sent to management from your team asking the following questions:

  • What will the training involve and will it be adequate, particularly for those who have no experience in carrying out personal care?
  • Will staff be partnered with or able to shadow experienced carers in order to ensure safe practise?
  • How will the employer ensure that staff are adequately trained in assisting people to move and administering medication, both of which are potentially dangerous tasks if carried out incorrectly?
  • How will this be risk assessed?
  • What personal protective equipment – and training in its use - will be provided?
  • Who will be carrying out the essential social work assessments and safeguarding work if social workers are removed from their substantive duties to carry out personal care?

​When being asked to carry out any duties that are different from the norm, it is important to maintain dialogue with management and ask questions about what their expectations are of you and how the activity has been risk assessed.

It is important that your employer provides guidance as to how the risks involved in these tasks will be assessed and managed. 

We have been told that we need to visit all adults face to face and that we must work ‘business as usual’ in relation to our duties but I am worried that I risk either unintentionally spreading or catching the virus and spreading it further.

The government Staying at home and away from others (social distancing) advice remains the same – where staff can work from home, they should work from home.  

Social workers should optimise use of telephones, other technology and digital online platforms to communicate with people using services and colleagues.  Ask your employer for up to date guidance and use the BASW Digital Capabilities Guidance resources to inform you and your organisation.

BASW has also developed  Professional practice guidance for home visits during Covid-19 Pandemic to help social workers and their employers manage the risks of home visits during the Covid-19 risk and Practice guidance for Children and Families Social Work during Covid-19.

The guidance is based on the principle that social workers and their organisations will minimise face to face home visits during the pandemic, based on risk assessments.

What is deemed a ‘reasonable management instruction’ and what would happen if I refused a management instruction that I considered to be unreasonable at this particular time?

In the current situation, this is potentially a very difficult question to answer, as this whole situation is completely unprecedented, and we have no evidence base to be drawing on.

Generally speaking, a management instruction would be unreasonable if they were asking you to carry out a role that was not within the remit of your job and your job description. However, in the current crisis situation, this is likely to be something that happens as people carry out tasks they would not normally undertake to support and safeguard those at most risk. People from all professions are likely to be asked to carry out tasks in addition to their regular duties and it is therefore difficult to define in the context of a national crisis what would be classed as ‘unreasonable’ as a direction from management.

However, a clear direction to go against government guidance in terms of social distancing, Public health guidance on access to personal protective equipment and working from home would be highly likely to be classed as unreasonable. If you were being asked to come into your office when there were clear structures in place to enable you to work from home and there was no strategic or operational reason as to why you needed to be in, it could clearly be argued that this is going against government guidance and is an unreasonable instruction. If this is the case for you, I would strongly advise that you contact the A & R team for further advice on this issue.

The difficulty with the COVID 19 situation is that nobody has all of the answers – this includes the A & R team. We are facing a national and international crisis that none of us have seen before and would ever expected to have seen.

We do, however, have a wealth of knowledge on employment law, policy and practice and can draw on this knowledge alongside the key guidance being issued by BASW, SWU and the government to offer you advice and guidance in your individual situation. 

BASW and SWU have taken a clear line on health and safety and their guidance documents should be used to support your decision making and any case you need to make to your manager about safety and reasonable management.

Agency Workers and Self-Employed.

I am an Agency Worker/Independent Social Worker, what financial protections are available to me if I cannot work because of sickness, self-isolation?

This will be dependent on if you are working as a self-employed person through a limited company or whether you are using an umbrella company and paying PAYE.

Agency Workers - If you are using an umbrella company and paying PAYE then you are technically ‘employed’ by the umbrella company.  Therefore, as an employee, you may be eligible for Statutory Sick Pay (SSP) which is £94.25 per week and this is payable, via the umbrella company as your employer for up to 28 weeks.  A change in Government legislation now means that SSP is payable from day 1 of sickness rather than day 4.  You can claim SSP even if you are having to self-isolate because you are caring for someone who is having to self-isolate in the same household.  To check your sick pay entitlement, you should talk to your employer, and visit the dedicated page on the government website for more information.

Self Employed - If you have COVID-19 or are advised to self-isolate then you may not be eligible for SSP.  Instead you will have to make a claim for Universal Credit (UC) or new style Employment and Support Allowance.

I am an Agency Worker/Independent Social Worker, what financial protections are available to me if I cannot work because there is no work for me?

This will be dependent on if you are working as a self-employed person through a limited company or whether you are using an umbrella company and paying PAYE.

Agency Workers

As previously mentioned, if you are using an umbrella company you are technically an employee of that company and therefore if your ‘employer’ has no work for you because of coronavirus (COVID-19) they could ‘furlough’ you, this would include circumstance where you cannot work because you are unable to find another contract.  

This means that the umbrella company, as your employer, could pay 80% of your regular wages through the Coronavirus Job Retention Scheme, up to a monthly cap of £2500.  You can only be ‘furloughed’ if you and your employer both agree. 

Some umbrella companies may not deem Agency Workers as ‘employee’s’ but appeal to their better nature and remind them of their obligations to you and the fact that the Government is providing the Coronavirus Job Retention Scheme to ensure that people do not face unnecessary hardship. 

Before requesting to be furloughed please check your contract as some umbrella company contracts state that the ‘employee’ only earns a basic minimum salary and other payments are ‘bonuses’.  Therefore, you would only be entitled to 80% of your basic minimum salary as your ‘regular wages’ and not your actual earnings.  For further advice, information, terms and conditions please see the Government Guidance. 

I am an agency worker, working under an umbrella company.  My ‘employment contract’ is with the umbrella company.  What am I entitled to if I can’t work because I have to self-isolate?

It’s important to check your contract with your umbrella company as a first step as this should outline your exact entitlement.  In most cases, you will be entitled to statutory sick pay (if it’s coronavirus related, it’s from the first day).  You also may be entitled to be furloughed, however, you need to check your contract as this may mean that you are only entitled to minimum wage if your contract states that anything above minimum wage is a bonus.  Please find more information here: https://www.acas.org.uk/coronavirus/self-isolation-and-sick-pay and here:  Please contact the team if you are uncertain.

 

I am an agency worker and am worried that I might get sick because of the risks I am exposed to at work, what protection is available for me in terms of earnings if this happens?

As an agency worker if you were to be absent from work  you may be entitled to statutory sick pay, but I would recommend that you minimise the risks to your self through discussion with your managers.

 

I am an agency worker and my work has come to an end, can I be Furloughed?

Yes check your contract, provided you were paid via PAYE on or before 19 March. This applies to those employed by Umbrella companies and it is their responsibility as the ‘employer’ for claiming through the Job Retention Scheme on your behalf and for paying you what you are entitled to.  You cannot apply for the scheme yourself.   Please note that many Umbrella Companies have locums/agency workers on minimum wage contracts so you may only receive 80% of this and not your actual pay.  For more information please refer to the following Government web page https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme and last week’s frequently asked questions on Agency Workers.

 

What happens if I am a fixed term contract and this is due to end?

Your employer can choose to furlough you and claim a grant for 80% of your regular wages up to a cap of £2500 a month. Your employer can choose to renew or extend your contract before its natural conclusion during the furlough period. There is no minimum period which must be left to run on a fixed term contract to enable it to be renewed or extended, but it must not have ended.  For more information please refer to the following Government web page https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme

Self-Employed

You can claim a taxable grant worth 80% of your trading profits up to a maximum of £2500 per month for the next three months (this may be extended if the Government deems this to be necessary).  This is on the proviso that you have traded in the tax year 2019-2020 and have submitted your Income Tax Self-Assessment tax return for the year 2018-2019. The sum you will receive will be 80% if the average tax years you have traded.

You cannot apply for this scheme yourself, HMRC will contact you directly if you are eligible for the scheme and ask you to apply directly. See full details including understanding of any other conditions that apply to this grant.

If you do not meet the conditions for this grant, then Instead you will have to make a claim for Universal Credit (UC) or new style Employment and Support Allowance

Carry Over of Holiday

I have not taken all of my statutory annual leave entitlement due to coronavirus; can I carry it over into next year?

New regulations came into force on 26 March 2020 relaxing the rules which govern when annual leave can be carried over. The effect of the regulations is that workers who have not taken their statutory four weeks’ annual leave entitlement due to coronavirus (COVID-19) can now carry it over into the next two leave years.

Workers have a statutory right to 5.6 weeks’ annual leave, which includes bank holidays. This is made up of a four-week entitlement under Regulation 13 of the Working Time Regulations (WTR) which normally could not be carried over into the next leave year and an additional 1.6 weeks under Regulation 13A which can be carried over if there is a written agreement allowing for that, such as a collective agreement. The only exception to the rule about not being able to carry over the four-week entitlement of leave was in relation to workers who were off sick or on maternity leave and therefore were unable to take it.

Regulation 3 of the Working Time (Coronavirus) (Amendment) Regulations 2020 now provides an exception to the bar on carrying forward any of the four weeks’ statutory annual leave.

This means that the WTR are amended so that where, at the end of a leave year, it was not “reasonably practicable” for the worker to take some or all of the statutory four weeks’ leave because of the effects of coronavirus (COVID-19), it can be carried forward into the following two leave years. The new exception applies to most workers including agency workers as well as those on irregular contracts such as zero-hour arrangements.

The regulations ensure that those workers whose leave year expired at the end of March and who have been unable to take holiday due to coronavirus (COVID-19) do not lose that holiday. The circumstances where the exception would apply are likely to be fairly wide and not just restricted to those who are sick and/or self-isolating given that it applies as a result of “the effects of coronavirus (including on the worker, the employer and the wider economy)”

The ACAS guide suggests that this will apply to both the situation where a worker is furloughed as well as workers unable to take the leave because of working commitments. This would apply to those deployed in the NHS and others in the private sector, such as delivery drivers who are working round the clock and have been unable to take leave.

Regulation 15 of the WTR normally allows employers to refuse requests to take annual leave, provided they give notice equal to the amount of leave to be taken (e.g. one week’s notice for one week’s leave). However, this provision is amended by the regulations so that employers can only refuse leave to be carried over due to coronavirus (COVID-19) where it has “good reason to do so”. What will be a good reason is likely to depend on all the circumstances, but employers will need to clearly explain the reason and would be well advised to evidence that in writing.

Changes have also been made to Regulation 14 of the WTR which provides for a payment in lieu of any untaken annual leave in the event that a worker’s employment terminates. The amendment now provides for the payment in lieu of any leave untaken on the date of termination to include any that is carried forward because of the effects of coronavirus (COVID-19).

Furlough

Questions on furlough

If I am given notice whilst on furlough should I receive my full pay during this time?

Yes, during the notice period you should pay your employee their normal pay ie 100% so you would need to top up the furlough pay

My employer now wants to furlough me, as they are stating that there is not enough work for me but I don’t agree to this, what are my options?

Furlough needs to be agreed by both parties. If agreement cannot be reached initially we would encourage you to have discussions with your employer to address any concerns that you have.  However if agreement cannot be reached and you decline to be furloughed then the employer may consider redundancy may be an alternative option.

I have been furloughed but prior to this I was under Disciplinary Procedures.  Can my employer continue with the disciplinary or do they need to put this on hold?

There is not a clear answer to this but best practice may suggest that Disciplinaries are put on hold at the moment where possible, but if this is not possible and depending on the circumstances, they are likely to be held virtually.  It is worth noting that disciplinaries may be deemed to be 'activities associated with employment' and thus contravene the rules of Furlough.

I am currently furloughed and have a week’s annual leave booked whilst on furlough, can I still take this if I want to and will I be paid at the furlough rates or on full pay?

An employee can take holiday while on furlough, for days taken as holiday they would receive 100% of normal pay. 80% of this will still be able to be claimed by the employer through the furlough scheme.

I am due to start a new post and have been advised that my new employer is now postponing the start date as they are stating that it was a conditional offer with the start date to be confirmed- can they do this?

To avoid any dispute or breach of contract, any changes to a job offer that are outside of the conditional terms should be agreed with the employee.  If the start date has not yet been confirmed or agreed, it would still be good practice for the employer to agree any postponement

I am currently on sick leave receiving full pay, as stated in my contract.  However, my employer is now stating that they want to furlough me which will only leave me with 80% of my pay.  What are my rights in this situation?

Employees must agree to be furloughed by the employer and written agreement held for 5 years.  If the employee would receive full pay on sick but only 80% if furloughed they may prefer not to agree.  Also furlough must be for a minimum of 3 weeks for each period of furlough.  If the period of sickness is for less than this a furlough claim may not be possible.

 

What can i do if i feel i am being forced into unsafe conditions and ppe is not provided?

If you feel you are being exposed to risk or where employers are not operating safely or in accordance with government guidance including the heightened hygiene provisions, social distancing and the provision of PPE, then an individual can in these situations  justify leaving the workplace. They can refuse to return where any danger persists or take appropriate steps to protect themselves. Any such decision would be on the basis of their own decision regarding their workplace as to whether there are “circumstances of danger” which they reasonably believe would be serious and imminent. This does not mean leaving work and going home, but removing themselves to a place of safety where that harm no longer exists and  until such time as that danger is minimised or averted. A risk assessment could be requested and  risks identified.

The employer’s attention should be drawn to the existence of S.44 and S.100 of the Employment Rights Act. This prohibits individuals who have left the workplace in circumstances of danger, which they reasonably believe is imminent and cannot be averted, from being subjected to a detriment, disciplinary  or dismissal.

It should be noted that these individual rights do not apply to all categories of workers, in particularly those that have the status of self-employed. However the duty for employers, hirers or contractors to provide a safe working environment for all those engaged in a workplace is applicable and relevant to everyone consistently.

 

If you are unsure of any of your employment rights or want to talk through any specific advice in relation to Coronavirus, or any other employment issue that you may wish to discuss, please do not hesitate to contact the Advice and Representation Team or call us on 0121 622 8413.