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).

Handling Redundancies during Covid

ACAS – the independent employment advisory service, the employer’s organisation (CBI) and trade unions (TUC) have issued a joint statement today about handling redundancies during the COVID pandemic, especially with the UK’s furlough scheme set to end in October and what, if anything, will replace it still to be announced.

The full statement is here https://www.acas.org.uk/joint-statement-acas-cbi-tuc

The key principles it outlines are something which I would always recommend to employers, no matter how big or small:

  • Be open about why you need to make redundancies
  • Give people as much information as they need to be able to respond properly
  • Consult genuinely – listen to what people have to say and give it proper consideration
  • Do it fairly – legally correctly and in a way that is ‘felt fair’ by everyone in the business
  • Handle it with dignity – a person is losing their job through no fault of their own. They aren’t just a ‘human resource’ to be disposed of.

If you need help or guidance with handling redundancies both legally, and with professionalism and integrity, please don’t hesitate to get in touch

The Upside of Coronavirus?

The Coronavirus (Covid-19) is clearly a very serious issue from a public health and business perspective – I would say that around 60% of the questions I’ve been asked over the last week or so have been on the HR implications of it.

However, in the longer term, it may turn out to have some positive impacts for the world of work.

The first is that – because they currently have to – many organisations may realise that working from home, or other more flexible arrangements, are not a disaster and we may see a change in attitudes. Even those who still retain objections will find it difficult to argue against more flexible options if they are given evidence that it clearly works.

If your business has never used homeworking before, but may now be forced to, there are a number of important things you need to consider. This twitter thread by Gem Dale is a very useful starting point.

Clearly, there are still lots of jobs (probably a majority) that require people to attend work, but we may be surprised at the number that can be done remotely.

Secondly, in the UK, it may result in a long overdue reform of the Sick Pay system. For those who qualify for Statutory Sick Pay (SSP), they (and their employers) are bound by confusing and bureaucratic rules about “Lower Earnings Limits”, “Waiting Days” and “Linked Periods”. These date back to the time when employers were reimbursed some of their SSP costs by the Government, something which hasn’t been the case for nearly a decade. There’s no reason why a much simpler system can’t be devised that provides a basic ‘safety net’ without involving employers in complex calculations.

The crisis has also highlighted that a significant proportion of the workforce don’t even qualify for the minimum level of payment. The very low paid, some of those classed as ‘workers’ not employees, and the self-employed all miss out. Some employers have said they will pay some form of sick pay to these groups, but this has been (until today) discretionary. The majority of employment law changes next month are around limiting some of the ‘loopholes’ in employment rights and if the government continues down this road then an extension of sick pay may be one of the next areas it tackles. Indeed, the chancellor’s emergency announcement in this week’s budget may be the start – now that the bottle has been uncorked it may be difficult to reseal it.

Finally, we might see the end of presenteeism – the idea that people attend work even if unwell, because the business ‘expects it’. Having someone in your place of work passing on their germs to their colleagues because ‘there’s a deadline to meet’ is an unacceptable whether those germs are Covid-19, vomiting and diarrhoea, or seasonal colds.

None of this, of course, minimises the very real problems that Covid-19 presents to society. But, like SARS and Swine Flu, it may only be a temporary issue.

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