Tag Archives: disability

No Jab No Care Home Job?

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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.

Newcastle United go down…

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Newcastle United hit the headlines for non-footballing reasons last week when they were found to have discriminated on the grounds of disability against one of their former players, Jonas Gutierrez. Apart from its high profile nature, the case has several interesting points for small business which often worry (unnecessarily) about disability issues.

The first thing to remember is that anyone diagnosed with cancer is classed as disabled under the Equality Act – no matter how early in the disease or how “healthy” the individual may appear. It seems that Newcastle either failed to accept this or chose to ignore it.

Secondly – an employer has a duty to make reasonable adjustments to allow a disabled employee to undertake their work. Reasonable is the key word here – it needs to take account of the size of business, nature of the work being done and how practical it is to make the adjustment. An “adjustment” need not be some physical change – it could be that you accept that someone with a disability has their targets or outputs adjusted, or even something as simple as allowing home working if the job can still be done that way. In Newcastle’s case, it was not adjusting the appearance target required to trigger a contract extension, given Gutierrez’ need to attend treatment. (They then compounded this by an act of direct discrimination, by not picking him when he was fit to ensure he couldn’t achieve the appearance target).

Thirdly, the case shows that if you are taken to tribunal – for any reason – it is important to have a clear and convincing argument that would sound reasonable to anyone not involved in the case. The tribunal concluded that senior figures at the football club were “evasive”, “vague” and “lacking in credibility”. Contrary to the view of some employers, tribunal judges aren’t biased in favour of employees but they are generally adept at spotting bulls*t – whether this comes from the individual making the claim or the employer’s witnesses.

As always, the advice is to consider what you can do to help an employee diagnosed with cancer or with any other form of disability; but that can be balanced against what you can realistically do as a business. And if you have made an error, don’t try to defend the indefensible!

Wheelchairs, Buses and Prams

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It’s impossible not to feel sympathy for Doug Paulley, the wheelchair user who was denied access to a bus because the wheelchair space was occupied by a passenger with a pushchair who refused to move. And I’ve no doubt that many will see the court victory by First Bus as evidence that disability rights are pushed to one side when big business comes to call.

But those criticising First Bus (of whom there are many on social media) need to remember one thing. It’s not some highly paid executive, or faceless corporation, who would be responsible for enforcing the ruling, had the court upheld Mr Paulley’s claim. Individual bus drivers are the ones who would have to police the decision, and they are the ones who would have to face the abuse from passengers if they delay the journey while trying to resolve the situation. And what is the driver expected to do if the passenger refuses to move? Physically eject them from the bus? Can you imagine the headlines?

Bus drivers – and others who provide frontline public services – already face a good deal of both verbal and physical abuse from their customers. From an HR and employment perspective, we have a responsibility to protect the health and safety of our employees. That might be a minor “admin” task for those who work in offices but is a big deal if your staff do a more dangerous job.

The real culprit here is not the bus company but society’s attitudes toward the disabled. The whole situation would have probably been avoided, not just if the other passenger had not been selfish but if the rest of the bus passengers had made it clear that her behaviour was socially unacceptable. Passing legislation, and then expecting low-paid frontline employees to implement it, is no substitute for basic good manners or an unselfish attitude.

Roll Over Beethoven

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Government Minister Lord Freud got himself in hot water last week when a recording of a Conference Fringe meeting was revealed where he stated that some disabled people were not worth the minimum wage, and suggested that employers could pay them £2 per hour with a state benefit being used to top this up. While most criticised him, there were some who sought to defend his comments, with this Daily Mail article being a particular example. In summary, it makes two points; firstly that the author’s father, who was blind, accepted he should be paid less because he required support to carry out his work – despite the fact that he was a highly rated newspaper columnist; and secondly that “the market” would inevitably value some jobs (by implication those done by people with disabilities) below the current level of the minimum wage.

Taking the second point first, it is quite possible that, if we simply allowed the market to determine wages, some jobs might be paid less than the current minimum wage rate of £6.50 per hour. If Lord Freud and his supporters want to make the case for abolishing the minimum wage, then that’s a perfectly acceptable position to argue (though none of the mainstream political parties seem to support it) – but it does seem to me that dressing up this argument as some form of altruistic help for the disabled is at best disingenous.

What worries me though about the first point though is that it demonstrates how out of touch politicians and media “commentators” are with the modern world of work. Firstly they seem completely unaware of the Access to Work Scheme, which provides  support for those with disabilities in work. To take the example of the blind Mr Utley, these days he wouldn’t require his employers to provide him with a paid secretary to read the newspapers to him, since a) most modern software includes a “read aloud” feature (as well as other accessibility options) b) if he did need special equipment it would be paid for and c) even if he did require a full time support worker his employer would get assistance with the costs. Without making a political point, it seems as a taxpayer that the government spending £500-£1000 providing an employer with special equipment to support an employee with a disability to work  is a more cost-effective solution than subsidising the disabled employee through the benefits system. Even in the case of  severe disability, where the individual requires a full time support worker, the current system (though not perfect) seems a better option.

Secondly,  they assume that a disability means an inability to do anything. No-one (even his political opponents) seriously suggests that David Blunkett was less effective than any other Home Secretary because he was blind. Indeed, rather than paying him less, if Mr Utley Snr really was the “leading Tory thinker of his generation” you’d expect the Telegraph to be paying him top dollar (it’s that thing called the market again) rather than ripping him off. Just imagine how Beethoven would have managed under Lord Freud and his supporters. “I’m sorry Ludwig, I know this symphony is genius but as you’re deaf, we’re only going to give you a third of what we paid Schubert for his inferior composition”.

Time to ditch the Equal Opps questionnaire?

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Some months ago I was working with a client on a recruitment project, and they provided me a copy of their “Equal Opportunities Monitoring Form”. It was certainly a comprehensive document, covering as it did around 20 different definitions of ethnic origin, a dozen major world religions, an option to declare if your birth gender was different to your current gender and five options for sexual orientation. In line with good practice the form carried a declaration that it was not part of the selection process and would be detached from the individual’s application; it was anonymous and every question had a “prefer not to say” option.

This sort of form is pretty common throughout HR departments – certainly in the UK – and it is, in my experience, genuinely used for the stated purpose, i.e. simply monitoring applications to ensure that the organisation is attracting candidates from all sections of the community. But something about it left me feeling uneasy and wondering why we are really doing this. While I have had conversations in the past about why so few women are applying for a particular role or that the company seems to have an issue attracting candidates from a minority ethnic group despite being based in an area which has a high population, I can honestly say that I’ve never had a discussion about “this vacancy seems to be attracting a large number of transgender candidates – I wonder why that is?” or “We’re not getting many Sikh applicants, do you think we’ve got a problem?”

Now that could be that as a profession we’re just not as aware of discrimination when it doesn’t involve race or sex. But it could also point to the fact that we are operating simply as data collectors in order to tick a box (and indeed in the traditional risk-averse HR way, storing the information purely as insurance against a discrimination claim: “Us – discriminatory? We’ve had 17 lesbians apply in the last 6 months”)

But my main sense of unease is the intrusive nature of the questions. We talk a lot about candidate experience and trust in employment relationships. Yet for many individuals, one of their first contacts with a potential employer is to be asked a lot of extremely personal questions – and then to believe that someone they have never met will keep their stated promise that “this information doesn’t form part of the selection process”.

Of course, without the information, organisations won’t necessarily know if we do have a problem in recruitment. But is there a better way to do it? One that better balances the company’s requirements without the need to pry into personal information that we admit is of no relevance to the role we’re recruiting for. I don’t have an answer – do you?