No Jab No Care Home Job?

There’s been much in the media today about the fact that the Government is to ‘require’ care workers to have the Covid-19 vaccination in order to continue working in front line support. Those who don’t will either have to be moved into work that doesn’t bring them into contact with residents or dismissed.

While the employment law implications are one which may worry business owners, the decision throws up a whole series of HR issues for that particular sector – ones which may also have implications for a lot of employers in the broader health/social care sector (which includes many of my charity clients)

Firstly, it’s important to remember that no vaccination is required by law in the UK.  The often quoted example that ‘doctors and nurses must have a Hepatitis B vaccination’ is based on clinical guidance issued by Public Health England which is then adopted by individual NHS and other healthcare employers as part of their health and safety policy/risk assessment process.  

If the government introduce a specific law (which would take some time to go through the parliamentary processes) or regulation (which wouldn’t) then sacking someone who fails to comply would be fair in law as a ‘statutory restriction’. (Update 21/6/21 – the change will be introduced by regulation, effective October 2021) An employer must still go through a fair process – exploring redeployment options before taking a decision to dismiss – and a dismissal would be with contractual or statutory notice.

If however they introduce the new rules as (prescriptive) guidance then it will be down to the individual employer to build them into their health and safety policy and recruitment guidelines.  While employers would be expected to follow them, it would be very difficult to justify dismissing someone (or not recruit someone) using the statutory restriction argument. Employers would probably have to rely on the catch all “some other substantial reason”, again ensuring that they dismiss with appropriate notice.

In addition to the risk of potential unfair dismissal claims, the sector already faces serious staff shortages with some estimates that there are 100000+ vacancies at the moment. The prospect of sacking otherwise competent staff at a time when it is difficult to recruit, and reducing further the number of prospective job candidates, is likely to cause further problems.

Care businesses will also need to communicate the changes clearly and effectively to staff; take time to collect appropriate vaccination records; perhaps give time off for people to be vaccinated; and ensure that staff understand the consequences of not being vaccinated. This is particularly important for the small number of people who are advised not to have the vaccination because of a health condition, which may mean there are also disability discrimination issues to be addressed.

None of this is to say that the aim of having all care home workers vaccinated (or indeed health and social care staff more generally) is a bad one. But we have seen too many instances in recent years of rushed new regulations being implemented without proper thought-through consequences, and subsequently having to be amended or repealed, for employers to be confident that another hastily announced policy will be any more effective.

A solution to the Sick Pay conundrum?

There’s been much in the press over the last few months about the fact that the UK’s Statutory Sick Pay (SSP) scheme – of around £95 per week – is one of the lowest in the developed world, and as a result acts as a disincentive for individuals to self-isolate during the current pandemic. More recently, there have been suggestions that the Government is considering paying a £500 grant to individuals to encourage them to self-isolate when required to do so (although latest reports claim the government has decided against this approach).

In addition, SSP is only payable to employees – not the self-employed or contractors – and only if they earn more than £120 per week. As a result, the lowest paid are also excluded.

Some of the concern about a change to the rules is from the Treasury around costs. But it needs to be remembered that:

  • Employers currently bear the cost of SSP (there are some temporary exceptions for Covid)
  • The minimum earnings figure dates back to when employers could claim some of the cost of SSP back. This was abolished several years ago and consequently is a meaningless anachronism.
  • There are several other cumbersome and pointless rules around SSP that again, date back to the days it was subsidised by central government. (if you are interested, google concepts such as “waiting days” and “linked periods”)

So, here’s a suggestion of how the government could improve SSP generally, encourage people to self-isolate and limit the long-term costs (though there would be a short term increase).

1. Set the SSP rate to £327 (a 37.5 hour week at the current minimum wage of £8.72 per hour), or 80% of weekly wages if normal salary is less than £327 – 80% being the furlough rate the government seem happy to pay. This could rise annually in line with minimum wage rates or simply be reviewed periodically.

2. Employers still pay the £95 per week contribution, which would rise on an annual basis as it currently does.

3. The scheme would cover all employees, regardless of earnings – no minimum level – and people classed as “workers”.

4. If costs were an issue, the length of time SSP would be paid could be reduced from the current 28 weeks to say 20 weeks.

5. The self-employed would be able to claim an equivalent payment from the DWP/HMRC based on evidence of their earnings.

6. The same rules on evidence (self-certificate for up to 7 days, doctor’s note thereafter) would still apply.

People earning £400 per week or more would obviously see a fall when off sick, but considerably less than currently. And it needs to be remembered that many employers offer more generous sick pay schemes anyway, which would not be affected.

Am interested to know any potential downsides that employers, HR professionals or policy makers can spot – either as short-term response to Covid or as a longer-term solution (I accept that I’ve picked £327 as an illustration and the rate could be higher – or lower).

Woolly Bully

Workplace bullying is back in the news in the UK, so I thought it might be helpful to outline the position for small businesses.

Bullying isn’t defined in employment law, although harassment is (section 26 of the Equality Act) – harassment being ‘unwanted conduct that…violates someone’s dignity…or creates an intimidating, hostile, degrading, humiliating or offensive environment” for an individual (my emphasis). Although this definition of harassment relates specifically to the protected characteristics under the Act, it does form the basis for many organisations’ policies on conduct for all staff.

In practice, bullying is often considered to be harassment by someone in a position of power over the individual – such as a boss.

Bullying can take many forms, but some I’ve encountered in my working life include

  • Giving impossible targets for a subordinate  – setting someone up to fail
  • Making public derogatory comments about a more junior member of staff, either when they are present or to other team members in their absence
  • Shouting, swearing or other verbally aggressive behaviour.
  • Micromanaging an individual, picking up every slight error
  • Treating an individual differently (for example enforcing applying a strict lunchbreak when others are allowed to take as long as they like).

It’s important to remember that both the Equality Act and case law have made it clear that it is the perception of the individual, not the intention of the alleged bully that is what counts – so “I didn’t mean it” is not an excuse for unacceptable behaviour, although it may be a mitigation for any penalty given (something I have discussed before).

Other excuses that won’t wash include “I just have high standards and expect everyone to conform to them” (you can have high standards without being aggressive towards your subordinates) “X is not up to the job” (performance management is about being supportive and agreeing clear targets) or “I’m just a woman operating in a man’s world, so I need to show I’m strong and decisive” (a poor culture doesn’t excuse your bad behaviour)

Of course, this doesn’t mean automatic dismissal for someone found to be bullying their subordinates – an employer is expected to make a reasonable decision considering all the circumstances of the situation. So a manager who hadn’t realised the effect their actions were having on their team members might be given a warning. It’s for you to decide. But you also need to consider the impact that not dealing with a bully will have on, not just on the individual who has raised the concern but on the rest of your workforce.

Bullying allegations can be difficult for small businesses to deal with, especially if the person accused is one of your key managers. But failing to act can lead to more negative consequences.

Babylon makes the rules

34 years ago, a Post Office Graduate Trainee (let’s call him Simon) was sent to produce a management report on ‘why are there so few black posties in Liverpool?’*  This was only a few years after the 1981 riots, and public sector organisations and large employers were being encouraged to take action on Equal Opportunities, specifically on race at that time. The Commission for Racial Equality had produced a new code of practice on recruitment and the Post Office had then incorporated it into a new set of rules that had to be followed.

Despite the fact that the rules had been in place for almost 2 years, Liverpool, unlike some other areas, had not seen any change at all in its employee profile, which was particularly odd since the majority of the City’s black community lived within a mile or so of the main sorting office.

When I got to the Liverpool office and sat down with the recruitment team, it appeared they were following all relevant processes correctly. Staff had been trained in interviewing and there were full ‘audit trails’ from advert to appointment. There was a definite lack of enthusiasm among line managers, who found the new processes slow and bureaucratic (even by Post Office standards) at a time when they were being particularly pressured about postal performance, but they accepted that the rules were ones they had to follow. The problem, everyone agreed at the office, was that “we don’t discriminate but they just don’t apply.”

Being young and keen, and fired up with the righteous zeal of someone who’d had a Rock Against Racism badge as a teenager and owned albums by the Tom Robinson Band and Linton Kwesi Johnson, I decided to try to find out why this was. So I arranged an interview with an organisation called South Liverpool Personnel, an employment agency set up after the riots to promote job opportunities to people in Liverpool 8.

They very kindly spent an hour or so answering my naïve questions about what the Post Office did and what it could do around its recruitment processes. But the answer to the key question of why people weren’t applying was both simple and devastating. The problem was that the Post Office was seen as part of the system – there were too many people in the community who had experienced overt or covert racism at the hands of key public institutions in the city and there was a complete lack of trust as a result. Moreover, there was no sense in which the Post Office was trying to show it had changed – the black community would not go to it until the organisation made an effort to go to them.

I completed my report; got a pat on the back from the Graduate Trainee co-ordinator and was thanked by the Head of Personnel in Liverpool, who said he’d consider my recommendations ‘very seriously’. When I returned to work permanently in Liverpool, about 18 months later, I found that one recommendation had been implemented – vacancies were notified to South Liverpool Personnel at the same time as they were sent to Job Centres. The idea of trying to communicate and connect with the local community, or understand their concerns, hadn’t been taken up.

The point of this post is not to have a pop at the Post Office, it’s a reminder to the mostly white HR profession that if we are serious about challenging years of ingrained prejudice it won’t be solved by changing a few procedures, running a few unconscious bias courses and doing a bit more “ethnic monitoring”. Unless we look at radical changes to the culture of our organisations, listen to what different communities are saying and act on that – and are prepared to make this a long term project, not the current flavour of the month – in 34 years’ time people are likely to be still having the same conversation.

*The proper title was something like “A review of recruitment and Equal Opportunities in the Liverpool Head Post Office area”, but you get the point.

You say you want a revolution? Well…

Everywhere I look, there are articles about the “future of work” once the Covid-19 pandemic is as fully controlled as it can be – the latest one (of many) being here. My post before this one, written a few days before the UK lockdown, now seems both overly optimistic and naïve.

I’m less convinced that work will look radically different post Covid. What the pandemic may do is accelerate certain changes that were happening anyway, but many of the issues that have been highlighted require longer term structural changes – and the political will to make these changes – before anything can be implemented.

Why do I say this? The last major pandemic to affect western economies in such a serious way was the now almost forgotten ‘Asian Flu’ pandemic of 1957-58. Despite finding many articles on the macro-economic, policy planning and health issues of that pandemic, I’ve yet to find any research on how work and working practices changed. Did the workplace look radically different in 1960 to 1957? I suspect not. There may be a reason why ‘pandemics’ didn’t feature in Tim Harford’s ‘50 Things that made the Modern Economy’ (now 100 things with the publication of its sequel!) – because they didn’t.

And if you want some contemporary anecdotal evidence, look at the pictures of people flooding to beaches, returning to work on public transport, or queueing for a drive through burger. Many are happy to return to the ‘old normal’, or – in the case of public transport – don’t have an option.

So with maybe a slightly less rose-tinted crystal ball, work in 5 years’ time will probably look not dissimilar to today. More people will be working from home but unless firms take a deliberate decision to invest in ‘home offices’ for their staff, we will be dealing with claims and issues from people who either don’t have or can’t access the right tech; are suffering back problems from balancing laptops on their knees because there’s nowhere else to sit; or will have increasing mental health challenges.

Similarly, while some of the more egregious abuses of the gig economy may be outlawed, we will still see plenty of people working in an insecure environment to deliver our packages and takeaways.

One thing’s for sure – HR people will need to adapt their skills to an evolving set of problems, but the fundamentals of the profession will stay the same.

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Photo by Anna Shvets on Pexels.com