Government reforms (3):  Guidance on mandatory vaccinations for care home staff

What do we already know?

We updated you in our July 2021 Newsletter Government reforms (2): Coronavirus (Covid-19): Mandatory vaccinations for care home staff that the Government announced that from October 2021 anyone working in a registered care home providing nursing or personal care would need to be fully COVID-19 vaccinated with both doses.

What’s new?

The Government has published its guidance on mandatory vaccinations for care home staff (available here).  The guidance is aimed at service providers, registered persons, local authorities, workers, professionals and tradespeople entering care homes, and residents of care homes regulated by the Care Quality Commission (CQC) that provide accommodation for those requiring nursing.

All the above groups must be fully vaccinated by 11 November 2021, unless exempt under regulations. This means the last date for workers to get their first dose is 16 September 2021.

The CQC will seek assurance from new and existing care home providers that they have a governance process to monitor vaccination and status of staff, ensure staff maintain an up to date vaccination status, monitor the vaccination status of all those entering care homes, and make reasonable adjustments where necessary.

The CQC may follow up any matters for concern via an on-site inspection, where it will look for evidence of compliance with the new requirements. If there is a breach of the regulations, the CQC will decide what action to take based on proportionality in line with its enforcement policy.

nursing home

Case update (2): Employment status – Worker or self-employed?

Summary:  Does an individual need to be offered and accept a minimum amount of work in order to be a ‘worker’?

No, says the EAT in Somerville v Nursing & Midwifery Council (available here).

Background:  The law groups staff as either employees, workers or self-employed and provides different levels of protection. Employees have the most protection and the self-employed the least. Workers are in the middle and are entitled to some statutory rights, including those in relation to the national minimum wage, working hours, annual leave and protection from discrimination.

The well-established legal test to establish worker status is set out at s230 of the Employment Rights Act 1996 (‘ERA’) and other legislation such as the Working Time Regulations, Trade Union and Labour Relations (Consolidation) Act and National Minimum Wage Act.

The test is that:

  • there must be a contract between an organisation and the individual;
  • the contract must be for ‘personal work or service’ i.e. the individual must do the work themselves; and
  • the organisation should not be a client or customer.

If the individual does not meet that test they will be self-employed.

To establish a contract there must be some level of obligation between the organisation and the individual to create a legally binding ‘worker’ relationship.  However, this does not mean the employer needs to offer, or the employee to accept, work.

To be for ‘personal work or service’, a promise simply to get the work done by somebody is not enough. It has to be the person contracted with. If there is a genuine right to substitute another person under the terms of a contract, this means it is likely to be self employment, rather than worker status.

Facts:  Mr Somerville was a panel member chair of the Nursing and Midwifery Council’s (NMC) Fitness to Practice Committee from 2012 to 2020, which he did alongside his work as a barrister. His contract with the NMC said he was a self-employed contractor and gave no requirement for him to be offered any work.  Further if Mr Somerville was offered work (in this case a ‘sitting date’), he was not obliged to accept it and was free to withdraw.

Mr Somerville claimed that he was either an employee or a worker, and was therefore entitled to paid holiday.

Employment Tribunal decision

The Tribunal held that Mr Somerville was a worker. There was a series of individual contracts between him and the NMC each time he agreed to sit on a hearing panel, as well as an overarching four-year contract for each term of appointment to the committee.

There was no right of substitution in the contracts and the lack of control in his relationship with the NMC was not something Mr Somerville would likely accept if genuinely self-employed. He had to do the work personally, work to the standards and requirements of the NMC and undertake mandatory training as part of his duties.  Further, his pay was fixed and non-negotiable.

EAT decision

The NMC appealed to the EAT. The NMC argued that to be a worker there must be some obligation to accept and perform a minimum amount of work.  To support this argument it referred to a comment in the Supreme Court’s decision in Uber which it said set out an ‘irreducible minimum of obligation’ as a general test for worker status.  Therefore the absence of any obligation on Mr Somerville to accept and perform some minimum amount of work meant that he could not be a worker.

The EAT dismissed the appeal and agreed with the Tribunal that Mr Somerville was a worker on each occasion he provided work (and under the overarching contract for providing his services). The EAT rejected the NMC’s argument that a lack of obligation to accept and perform a minimum amount of work was inconsistent with worker status.

The EAT reviewed previous case law and concluded that this does not establish a requirement for an ‘irreducible minimum of obligation‘ as a condition for worker status. The Supreme Court in Uber did not set this out as a general test for worker status.  Its comments were not made in that context.

Implications:   This means that in the EAT’s view, worker status does not require an individual to be offered and accept a minimum amount of work.  Even though Mr Somerville could refuse and withdraw from work, and his contract said he was self-employed, he was in fact a worker.

Central to the EAT’s finding of worker status was the requirement for personal service.  What is important is who, not when or what.  The fact that Mr Somerville had to provide the services himself at all times, and was controlled by the NMC in his work, overrode all other considerations.

reading employment contract

What the team have been doing recently…

Is your pay and reward strategy still fit for purpose?

The economic repercussions of Covid-19 continue to reverberate with its impact on businesses varying greatly within and across industries.  Some have experienced devastating revenue loss, while others have benefitted from increased demand for their products or services.  For many, the need to attract and retain staff is under particular pressure with the combination of Covid and our exit from the EU having created the ‘perfect storm’.

Many businesses are prioritising reviewing and adjusting their pay strategies with many adapting their goal-setting and strategies to shorter timescales than the traditional 3-5 year plans. As a result, our Pay and Reward expert Jane Baalam is in demand, currently undertaking job evaluation, pay and benefit benchmarking and pay strategy projects on behalf of several of our clients.

If Pay and Reward is on your mind, please do get in touch with Lindsey (), we’d be pleased to discuss your options and how we can help.

 

Our Employment Update returns this Autumn!

Many thanks to those who completed our survey on the viability of returning to in-person events.  The consensus is that a return to in-person events will be welcomed (with the right safety measures in place of course).

It sounds like many of you have missed the opportunity to meet peers/colleagues, network and exchange ideas and live issues – as well as the buzz of an in-person event.

We’ll aim to address these with our Autumn Employment Law Update which we’re planning to hold in November.  This may be smaller than some of our previous events but will remain focused on  updating attendees on relevant caselaw and HR/employment topics whilst acting as an informal opportunity for exchanging ideas, networking and making important connections.

We have really missed seeing you all and we’ll relish the opportunity to catch up with you face to face.  More on our Employment Law Update as it evolves…

carbon footprint

Going greener

We’re always trying to find ways to reduce the firm’s carbon footprint.  We’ve signed up to Ecologi a small tree-planting, climate change off-setting scheme working hard to create a powerful movement for positive change.

We anticipate that between 800 and 1200 trees per annum will be planted on Menzies Law’s behalf.  You can see how many trees have been planted so far : Menzies Law Ecologi profile.

Perhaps you’d like to use Ecologi to reduce your firm’s carbon footprint too?

 

pay and reward

Government reforms (4):  Immigration – Right to work checks

What do we already know?

As part of an employer’s obligations to prevent illegal working, there is a requirement to check the right to work of all employees’ original documents in person on or before their first day of work.

However, due to the Covid-19 pandemic, employers have temporarily not been required to see an employee’s original document in person in order to carry out a compliant right to work check and can carry out a remote right to work check instead. A remote check is currently done by reviewing an electronic copy of the document and holding a video call with the employee.

What’s new?

The Government has extended the Covid-19 concession allowing employers to carry out a remote right to work check to 5 April 2022 (see updated guidance here).

This long extension was made following positive feedback about the ability to conduct such checks remotely and the need to ensure that the right to work scheme continues to support employers.  It also gives the Home Office time to review the availability of specialist technology to support a system of digital right to work checks in the future. It is hoped that this will help support those who are unable to use the Home Office online checking service, to conduct remote checks but with enhanced security.

The Government has also confirmed that where employers have carried out such Covid-19 adjusted remote check between 30 March 2020 and 5 April 2022, they will not then be required to carry out full right to work checks retrospectively.

right to work

Government reforms (1):  Health and Safety – Returning to the office

What do we already know?

We updated you in our February 2021 Newsletter Coronavirus (Covid-19): Lockdown 3.0 – Government guidance  on the updates to the 14 workplace guides the Government had published to enable employers to operate safely (known as being “COVID secure”).

What’s new?

The Government has again updated its guidance on working safely during the COVID-19 pandemic (available here).  This is in light of the end of the Government’s ending of Covid-19 restrictions from 19 July 2021, including its formal advice to “work from home if you can”.

As a reminder, the workplace guides (‘Working safely during coronavirus (COVID-19’) cover a variety of different workplaces, from offices and contact centres to factories and warehouses.  These are now grouped into six sector-specific guides and contain practical steps for businesses.  This is focused around the following six key steps:

  1. Complete a health and safety risk assessment that includes the risk from Covid-19 (this continues to be critical);
  2. Provide adequate ventilation;
  3. Clean more often;
  4. Turn away people with Covid-19 symptoms;
  5. Enable people to check in at your venue; and
  6. Communication and training.

The guidance shifts much of the responsibility for health and safety measures from the Government to individuals and businesses and the overview to the guidance states:

To support businesses through this next phase, the ‘Working Safely’ guidance will continue to provide advice on sensible precautions employers can take to manage risk and support their staff and customersBusinesses still have a legal duty to manage risks to those affected by their business. The way to do this is to carry out a health and safety risk assessment, including the risk of Covid-19, and to take reasonable steps to mitigate the risks you identify.  You should use the guidance to consider the risk within your premises and decide which mitigations are appropriate to adopt”.

Key changes highlighted in the guidance include:

Working from home

The Government expects and recommends a gradual return to the workplace, which employers should discuss with its staff, including its timing and phasing.

Social distancing

As social distancing guidance no longer applies from 19 July 2021, businesses do not strictly need to implement social distancing in their workplace or venue.  Also customers and workers will no longer have to keep apart from people they do not live with.

However, the guidance for offices points out that Covid-19 can still be spread through social contact and recommends that employers should still think about how they can mitigate this risk by reducing the number of people that their employees come into contact with.

Therefore employers should not immediately dispense with all the systems etc. they have put in place to comply with the restrictions. There might usefully be a review of whether a reduced set of restrictions on masks and social distancing might remain appropriate in unventilated or high-traffic areas.

Employees at higher risk from COVID-19

Employers should give extra consideration to people at higher risk and to workers facing mental and physical health difficulties. Those who are clinically extremely vulnerable are no longer advised to shield. However, employers should continue to support these workers by discussing with them their individual needs and supporting them in taking any additional precautions advised by their clinicians.

Face coverings

Face coverings are no longer required by law. However, the Government expects and recommends that people continue to wear face coverings in crowded, enclosed spaces. Consider encouraging the use of face coverings by workers (for example through signage) particularly in indoor areas. This is especially important in enclosed and crowded spaces. When deciding whether you will ask workers or customers to wear a face covering, you would need to consider the reasonable adjustments needed for staff and clients with disabilities.  It is likely that a request for employees to continue to wear facemasks would be a reasonable management instruction.

Self-isolation

Where there is a positive case, employers should immediately identify any close workplace contacts and ask them to self-isolate rather than wait for NHS Test and Trace.

Testing

Anyone with symptoms can get a free NHS test. Employees who do not have symptoms of Covid-19 can access testing free of charge at home or at a test site.

There is no specific guidance regarding vaccination.

clean hands

Case update (1):  Sickness absence 

Summary:  Can an employer rely on medical evidence which post-dates dismissal when defending a disability discrimination claim?

No, says the EAT in Brightman v TIAA Limited (available here)

Facts: Mrs Brightman was employed by TIAA Limited.  The employer knew she had severe asthma and other conditions that meant she was disabled under the Equality Act 2010. The employer made adjustments to her working hours and type of work.  However, despite these changes, Mrs Brightman had significant absences from work.

A report from Mrs Brightman’s GP in 2015 said she was fit for her role but that her worsening conditions would likely lead to longer periods of sick leave. It also stated that there was ‘no reason why she could not be able to manage her work as she had done for many years’. In 2016 she continued to be absent and was referred to occupational health (OH). Its report stated that further absences would continue to be likely and ‘the only recommendation was further flexibility for tolerating sickness absence’. The employer decided that Mrs Brightman’s absence levels were unlikely to improve and that there were no further adjustments that it could make.  Mrs Brightman was dismissed on grounds of capability in January 2017.  At the time of her dismissal in she had been working for three months without absence.

Mrs Brightman unsuccessfully appealed and subsequently brought Tribunal claims for unfair dismissal, disability discrimination and a failure to make reasonable adjustments.

Tribunal decision

The Tribunal dismissed Mrs Brightman’s claims. It accepted that the dismissal was within the range of reasonable responses, relying on medical evidence that showed that Mrs Brightman’s health did not in fact improve until 2018. On that basis the employer could not have been expected to wait longer before taking the decision to dismiss.

Mrs Brightman appealed to the EAT.

EAT decision

The EAT overturned the Tribunal’s decision and upheld Mrs Brightman’s claims.  The EAT noted the following:

  • Mrs Brightman’s last day of sickness absence was 24 October 2016 (two and a half months before her dismissal was confirmed) and she attended work throughout the dismissal and appeal process;
  • by the date of her dismissal, Mrs Brightman’s GP report was over a year old and her Occupational Health report was based on a consultation from over six months earlier (the referral being to assess her fitness to work, rather than a medical prognosis); and
  • at the time of dismissal, Mrs Brightman had a new central line fitted, was under the care of a new medical team and was optimistic about the future.

The EAT concluded that the Tribunal had been wrong to rely on medical evidence that post-dated the dismissal (that showed that Mrs Brightman’s health did not in fact improve until 2018) as this was irrelevant to Mrs Brightman’s claims.

The Tribunal should have instead focused on the above facts.  The Tribunal had to decide whether it was reasonable for the employer to dismiss on the basis of the information available to it at the time of the dismissal, or whether it needed to carry out more investigation into the employee’s medical condition. In this case the Tribunal had doubts about the adequacy of the medical information but had “filled the gap” with information about how Mrs Brightman’s medical condition had in fact progressed after the dismissal. That evidence was irrelevant to whether the employer had acted fairly in deciding to dismiss in the first place.

The same mistake made the Tribunal’s approach to the reasonable adjustments claim unsound. Although the Tribunal found that it would not have been reasonable for the employer to wait another year for Mrs Brightman’s health to improve, that conclusion was also based on the medical evidence about what had happened after the event. The Tribunal should have considered the reasonable adjustments claim on the basis of the medical evidence available at the time.

The unfair dismissal and disability discrimination claims were sent back to a different Tribunal for rehearing.

Implications:  Employers must tread carefully before dismissing, even where an employee has had multiple periods of prolonged absence. This is particularly important if the employee’s attendance has recently improved or if there is new information – such as the change of medical team in this case – that may make further investigation advisable.  Medical evidence relied on should be current, and the employee’s condition and prognosis at the time of dismissal considered.

medical

Case update (3):  Sex discrimination – The childcare disparity

Summary:  Do Tribunals still need to take into account (without further evidence) that women generally have greater childcare responsibilities than men? Particularly when deciding whether required working patterns are indirectly discriminatory against women.

Yes says the EAT in Dobson v North Cumbria Integrated Care NHS Foundation Trust (available here).

Background: Indirect discrimination occurs where the:

  • employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic;
  • PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage);
  • PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage); and the
  • employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

Courts sometimes give “judicial notice” to matters without admissions from a party or the need for evidence. For instance, where the facts are so well established and known to courts that they can be accepted without further enquiry.

Facts:  Ms Dobson was a community nurse. She has three children, two of whom are disabled. Due to her childcare responsibilities, she had made a successful flexible working request and had, for a number of years, worked only 15 hours per week over two fixed days (Wednesday and Thursday) with her mother-in-law arranging her work to be able to provide childcare on those two days.

In 2016, her employer issued a new rostering policy which required all existing flexible working arrangements to be reviewed. Ms Dobson was asked to work an occasional weekend no more than once a month. She advised that, given her circumstances, she had no alternative working arrangements available. When the Trust gave her notice that she might be required to work on other days, including Saturdays, Ms Dobson rejected the proposed changes to her working arrangements. She said that she couldn’t work flexibly, was signed off sick and raised a grievance. This was rejected, as was Ms Dobson’s appeal.

The Trust told Ms Dobson that it had no option other than to dismiss her and to offer to re-engage her on new terms requiring her to work on additional days (subject to the Trust giving notice of any different days to be worked). Ms Dobson declined the new terms. The Trust gave notice of dismissal and Ms Dobson’s subsequent appeal was rejected.

Ms Dobson brought Tribunal claims for unfair dismissal and indirect sex discrimination. She claimed the policy indirectly discriminated against her as a woman with child caring responsibilities.

Tribunal decision

The Tribunal dismissed Ms Dobson’s claims. In relation to the indirect sex discrimination claim, it held that:

  • the PCP was the Trust’s requirement that its community nurses work flexibly, including at weekends. That PCP applied to men and women in the Team; and
  • no evidence had been produced to support the argument that the PCP put women at a particular disadvantage compared to men. On the contrary, the other women and man in the team were able to meet the requirement. In the absence of any evidence demonstrating that women as a group were (or would be) disadvantaged by the requirement to work flexibly, the claim failed.
  • In any event, if it was wrong in its primary conclusion, the Tribunal considered that the Trust could justify the PCP. The Trust was pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service. It was proportionate to do so by applying the PCP to all members of the Team.

Ms Dobson appealed.

EAT decision

The EAT allowed Ms Dobson’s appeal. In particular, the EAT found that the Tribunal had erred in two areas, specifically by limiting the pool for comparison to Ms Dobson’s team and finding no evidence of group disadvantage.

The EAT said that the pool for comparison wasn’t limited to Ms Dobson’s small team and applied to all community nurses employed by the Trust. I.e. having found the PCP required all community nurses to work flexibly, including weekends, it was incumbent on the Tribunal to identify a pool comprising all persons affected by that PCP, that is, all community nurses.

The EAT also said that Ms Dobson did not need to adduce evidence to explain why she was disadvantaged because of her childcare responsibilities.  The childcare disparity has been accepted by courts at all levels for many years and, if relevant, must be taken into account.  Women still bear the greater burden of childcare responsibilities than men and this can limit their ability to work certain hours. Things have progressed, but the position is still far from equal.

However, taking judicial notice of the disparity does not automatically mean there is a group disadvantage. This will depend on the general position that is the result of the childcare disparity and the PCP in question. In this case the PCP was to work flexibly, which meant working on other days as and when required by the Trust. The EAT concluded that because there was no flexibility for the nurses to choose the days or hours they worked (within certain parameters) there was likely to be a relationship between the childcare disparity and PCP that resulted in a group disadvantage.  This conclusion meant that, the Tribunal’s findings on justification couldn’t stand and would have to be revisited by the same Tribunal.

In respect of her claim for unfair dismissal, the Tribunal said that if it is indirectly discriminatory to impose a requirement to work flexibly, it could be argued that dismissing someone for failing to comply with that requirement fell outside the band of reasonable responses open to her employer. That issue would have to be remitted to the Tribunal to reconsider.

Implications:  Although this decision does not change the law, the EAT’s confirmation of both the childcare disparity and that judicial notice should be taken of this, are helpful clarification. Whilst it is possible that this will change in time, at the moment the position remains that the burden of childcare is not equal.  This means that employers should into take account that women bringing indirect sex discrimination claims will not have to provide their own supporting evidence to show why they were disadvantaged because of their childcare responsibilities.

However, the EAT childcare disparity does not automatically mean there is a group disadvantage and claimants will still be required to show this. Indeed some flexible working arrangements could be helpful for most women with child care responsibilities.  For example, if a requirement to work flexibly requires working any period of eight hours within a fixed window, or involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities, then it would be open to a Tribunal to conclude that the group disadvantage is not made out.

Given that employers maybe considering changing working patterns at this time, it is worth remembering that any change in working arrangements needs to be carefully considered in light of the childcare disparity and the risk of an indirect sex discrimination claim.

working mother

Government reforms (2): Sexual harassment – Government response to consultation 

What do we already know?

We updated you in our July 2019 Newsletter Government reforms (1): Tackling Gender Inequality & Workplace Sexual Harassment Consultation that the Government Equalities Office (GEO) was consulting on sexual harassment in the workplace to see how the existing protections for workers could be strengthened.

The consultation closed on 2 October 2019.

What’s new?

The Government has published its response to the consultation on workplace sexual harassment. The response confirms the Government will:

  • introduce a new duty for employers to prevent sexual harassment in the workplace “as soon as” parliamentary time allows;
  • discuss scope for further strategic enforcement action by the Equality and Human Rights Commission (EHRC); support the EHRC to develop a new statutory code of practice; and produce accessible guidance for employers on the code (however, no timescales have been provided for this);
  • introduce a new duty for employers to prevent third-party harassment in the workplace when parliamentary time allows; and
  • look closely at the possibility of extending the time limit for all claims under the Equality Act 2010.

However, the Government will not extend the protections of the Equality Act 2010 to volunteers and interns.

Duty to prevent sexual harassment

Currently, an employer is only liable if an incident of sexual harassment actually occurs and the employer has failed to take preventative steps to avoid this. Under the proposed duty, an employer could potentially be held liable for failing to take “all reasonable steps” to prevent sexual harassment, without the need for an incident to have taken place, thereby placing greater emphasis on the importance of taking preventative action. However, the Government says that during the process of drafting the legislation, it will consult with affected stakeholders to ensure that what is introduced works properly when applied to real workplaces.  Further, it will remain the case that individuals will only be able to bring claims once an incident of sexual harassment has occurred. Only the EHRC will be able to take enforcement action against employers for failing to take all reasonable steps to prevent sexual harassment, without an incident having occurred.

Third-party harassment

There is little detail, at this stage, about what sort of protection will be put in place.  The Government says that it is continuing “to work with stakeholders to help shape the protection”. For example, they will be given further opportunities to comment on whether an incident of harassment having taken place should be a pre-requisite for bringing a claim.

The responses to the consultation highlighted several practical difficulties presented by introducing a liability for employers to prevent third party sexual harassment which is not triggered by a specific incident. In addition, respondents expressed concern that it may be easier to anticipate the likelihood of sexual harassment in some workplaces than others. The Government’s proposed way of balancing the range of possibilities is to introduce a defence of having taken “all reasonable steps” to have prevented third-party harassment.

Volunteers and interns

In the consultation, the Government had identified unpaid staff such as volunteers and interns as being particularly vulnerable to harassment. However, the Government has decided not to extend the protections in the Equality Act 2010 to volunteers so as not to create disproportionate liability and difficulties for small volunteer-led organisations. The Government takes the view that unpaid interns are already likely to be workers and as such protected under the Equality Act 2010 in many cases.

Extending the time limit for bringing Equality Act claims

The Government has committed to “look closely” at extending the time limit for bringing claims under the Equality Act 2010 from three to six months. Although, currently, most claims must be brought within three months, Tribunals have the discretion to extend time limits when they consider it “just and equitable” to do so.

The Government recognises that the three month time limit is particularly problematic in relation to sexual harassment claims, as would-be claimants often miss the deadline because they are dealing with the trauma of the harassment. Additionally, the three month time limit is often incompatible with the length of internal grievance procedures.

However, the Government is concerned not to place additional pressure on the Tribunal service as it is already stretched by having to cope with the effects of the Covid-19 pandemic. The Government says it will “look closely” at extending time limits, without actually committing to action or a timescale.   To avoid confusion, any extension would apply to all cases under the Equality Act 2010, not just harassment cases.

Comment

Given that all of the Government’s commitments depend on changes to the law (which it has said will be introduced “as soon as parliamentary time allows”) it is unlikely that there will be changes any time soon.  However, in the meantime, it may be advisable for employers to start to prepare for the changes.  The technical guidance that the EHRC published in 2020 (available here) is a good place to start as the new Code of Practice is likely to be based on this.  The EHRC guidance puts the responsibility on employers to be more inquisitive about what is going on in their workplaces and recommends steps that employers can take. These include reviewing policies, training employees and managers, carrying out rigorous investigations (even into historic complaints) and conducting risk assessments.

sexual harrassment in the workplace

Menzies Law Newsletter 2021 Issue 5

Welcome to September!  We sincerely hope you managed a break this summer and you are feeling refreshed and able to handle whatever the Autumn throws at you? Following the lifting of Covid restrictions in July, many businesses are hoping that their staff will return to the office over the next month or two. To help with this return we update you on changes to the Government’s health and safety workplace guides in light of the restrictions lifted on 19 July.  We also look at the Government’s response to its consultation on tackling workplace sexual harassment, its guidance on mandatory vaccinations for care home staff and the extension of temporary Covid-19 right to work checks.

In our case update we look at 3 EAT decisions which said that:

  • medical evidence which post-dates a dismissal is irrelevant to defending a disability discrimination claim;
  • an individual does not need to be offered and accept a minimum amount of work in order to classed as a ‘worker’; and
  • Tribunals must take into account that women have greater childcare responsibilities than men when considering if working patterns are indirectly discriminatory against women.

What the team have been doing recently…

Read about these topics of news:

  • Is your pay and reward strategy still fit for purpose?
  • Our Employment Update returns this Autumn!
  • Going greener

Here are all of the Government reforms and case updates we cover this month:

And finally…

Can you count happiness?  It looks like you can! If you want to know where happiness comes from and why it matters, read on …

Counting Happiness and Where it Comes From | FlowingData

 

 

september - photo of autumn leaves

Government reforms (2): Coronavirus (Covid-19): Mandatory vaccinations for care home staff

What do we already know?

We updated you in our Issue 2 Newsletter Coronavirus (COVID-19): Vaccinations – Can employers insist? on the issues involved in introducing a mandatory vaccination policy.  We advised that in certain circumstances it would be more reasonable to make the vaccine mandatory.  In particular, an employer’s Covid-19 risk assessment may find it necessary for staff in particular roles and sectors, such as care workers, to have the vaccine to protect the vulnerable people they work with.

What’s new?

The Government has announced that from October 2021 anyone working in a registered care home providing nursing or personal care will need to be fully COVID-19 vaccinated with both doses.  This follows the Government’s consultation on this topic and is intended to protect residents against death and serious illness.

The mandatory vaccination requirement will cover anyone working in a registered care home providing nursing or personal care on a full-time, part-time or volunteer basis, whether employed directly by the care home provider or by an agency. Those coming into care homes to do other work including healthcare workers, trades people, hairdressers and Care Quality Commission (CQC) inspectors must also comply with the vaccination requirements.

The only exceptions are those staff who have a medical exemption; those entering a care home to assist in an emergency or to carry out urgent maintenance work; people under 18 years of age; and clinical trial participants.   The mandatory vaccination will also not apply to residents, or friends or relatives or residents who are visiting.

The Government has said it will publish further guidance on the scope and process for granting exemptions and that it is considering how those affected will be able to use, for example, the NHS app to provide evidence to employers of their vaccination or exemption status.

The Government intends to consult further on whether to extend mandatory vaccination against Covid-19 and flu to others working in health and social care settings.

Comment

This change in the law does help remove the risks for employers which have a policy of mandatory vaccination for its staff in the care sector, as there will be a statutory reason for this.

However, to support good employee relations the preferred route will no doubt remain encouraging workers to take the vaccine and stressing its importance, rather than mandating it.  This is particularly important because this is likely to be an ongoing issue as staff are likely to need annual boosters, not just the initial vaccination. This approach should also help employers avoid needing to defend costly unfair dismissal and discrimination claims or, if they do face such a claim, to show that there has been a fair process.

nursing home