The BBC announced today that the Covid-19 Vaccine is going to be made compulsory for care staff, following some information received from a source in the Government.
What is the most up to date information on making it compulsory following the wide range of social media / news articles?
Click here to read our 16th June and past blogs on the subject.
The popularity of remote working is on the rise but there are pitfalls for both employer and worker.
The Office for National Statistics in its report Homeworking hours, rewards and opportunities in the UK: 2011 to 2020 found that 35.9 percent of the UK workforce worked some of their time at home in 2020, an increase of 9.4 percent over the previous year. But this was not spread evenly over the country or the economy. For example, those who worked at home earned about 20 percent more than those who didn’t, and there was more homeworking in the South East than in the North East of England. IT, professional, scientific and technical, and financial services roles were top for homeworking. Unsurprisingly it was least seen in accommodation and food services.
What are the pros and cons of home working? The upside is that work-life balance is improved, and domestic and childcare roles particularly those of women make it a good fit. It saves journeys which is important for the environment, and, the ONS found, leads to less sick leave.
But homeworkers work longer hours – often in the evening – and are less likely to receive a bonus or to be promoted. They also find it harder to log off.
But homeworking is definitely here to stay. A recent study by Microsoft The Next Great Disruption Is Hybrid Work – Are We Ready? suggests that flexible remote working will continue but that employers need to make adjustments.
Employers may need to rethink working arrangements to provide flexibility and support for workers.
Recent polling by Prospect, the union for professionals, has found that two thirds of workers want the right to disconnect. The union proposes this right be enshrined in law. A new Employment Bill has been promised since the Queen’s Speech in December 2019 but has been delayed by the pandemic. This could oblige employers to negotiate boundaries with workers – when are they available to be contacted and when are they not.
In Ireland all workers have the right to disconnect from work and to have a better work-life balance. The Department for Business, Energy and Industrial Strategy says the new Employment Bill will include measures to help people balance work with their personal lives. But there’s nothing stopping employers taking action in advance of any legislation.
The furlough scheme ends in September and many employers will be planning how to keep their businesses profitable. Workers fear they will lose their jobs, and women are likely to feature disproportionately in the redundancy statistics.
And there’s also the phenomenon of “fire and rehire”. Also called “dismissal and re-engagement”, the motivation is to fire workers and rehire them on terms more favourable to the employer. This isn’t unlawful but employers may find workers lodging claims in the employment tribunal.
According to a recent Trades Union Congress report, since March 2020 nearly one in ten workers have been told to reapply for their jobs on worse terms and conditions or to face the sack. BME and young workers have principally been targeted, and Parliament’s Transport Committee has criticised British Airways’ fire and rehire tactics. The Unite union has dubbed the practice “bullying” and has launched a national campaign to outlaw it. Fire and rehire is already banned in Ireland and Spain.
Meanwhile ACAS has issued guidance on its site, Changing an employment contract – When changes are not agreed. Employers should consider whether the changes are really necessary and if they are:
Holiday pay and national minimum wage – isn’t everyone entitled? Yes, if they’re employed or classed as a worker. But an underclass of so called “self-employed” has grown up thanks to big firms operating in the gig economy. Research suggests almost half a million workers are wrongly categorised as self-employed.
A group of Addison Lee drivers claim they aren’t self-employed but are workers. In 2017 they succeeded in the Employment Tribunal. In 2018 the Employment Appeal Tribunal upheld the decision on the ground that if the drivers didn’t accept work they had to explain why and could be penalised. The case recently concluded with an unsuccessful appeal by Addison Lee to the Supreme Court. The drivers are workers and are entitled to the national minimum wage from time they log on, and Addison Lee will have to pay an average of £10,000 to thousands of workers. Lawyers said this represented “another blow to big firms operating in the gig economy”.
Another success for workers in the gig economy was recorded for Uber drivers. The Supreme Court recently held they were workers rather than self-employed, and are entitled to the national minimum wage – including backpay of the minimum wage – from the moment they turn on their app. And they will of course be entitled to paid holidays.
Help for gig workers is on the horizon. The long-awaited Employment Bill will protect gig workers with a right to request guaranteed working hours. But commentators criticise this as not being the same as guaranteed working hours.
“When did we stop caring about honesty and integrity” asked Superintendent Hastings in BBC’s popular drama, Line of Duty.
A recent case, Chief Constable of Avon & Somerset Constabulary v Eckland has highlighted that organised criminal gangs, corrupt police officers and missing evidence aren’t just the stuff of drama.
Detective Sergeant Nicholas Eckland joined the police in 1998. In 2018 whilst investigating organised crime networks he gave evidence at Bristol Crown Court as Senior Investigating Officer. His evidence concerned the death in prison of a defendant in a drug conspiracy, Mr W. DS Eckland said he’d identified the deceased, but this wasn’t accurate as he hadn’t visited the mortuary.
The Chief Constable appointed a panel to carry out a detailed investigation. DS Eckland said he’d feared for his life, blaming death threats and the existence of a corrupt colleague. He claimed this could be backed up by his notebooks but these went missing during the investigation. The panel held that DS Eckland’s inaccurate evidence to the Crown Court amounted to Discreditable Conduct “in that such conduct has a tendency to undermine public confidence in the integrity of evidence given by police officers in legal proceedings”.
He was dismissed for gross misconduct and brought a claim for disability discrimination against the Chief Constable claiming he was disabled by “depression and episodic paroxysmal anxiety”. A preliminary issue was recently decided. The Court held that the Chief Constable could be held liable for any discrimination committed by the panel that investigated Eckland.
The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.
Another couple of long running cases have recently been decided, Mencap v Tomlinson-Blake and Shannon v Rampersad. Both concern the pay of workers in a caring role when they are asleep but available to give care.
Ms Tomlinson-Blake was employed by Mencap. She was occasionally required to sleep-in at a home for vulnerable adults in case her assistance was required during the night. She claimed payment for her sleep-in shifts, not just when she was working but when she was asleep. Mr Shannon lived on the top floor of a care home. He agreed to always be home between 10pm and 7am in case the night staff required assistance. He received a small payment and paid neither rent nor services for the flat. He too claimed payment for the entirety of his sleep-ins.
In 2109 the Employment Appeal Tribunal upheld Ms Tomlinson-Blake’s claim to be paid when she was asleep but denied Mr Shannon’s claim. As a result, there were fears the sector would face claims for back pay of national minimum wage of £400m.
Mencap appealed as did Mr Shannon. The appeals were heard together. The Court held that although Ms Tomlinson-Blake and Mr Shannon were “available” for work when sleeping, they were not “working”. Unison sought leave to appeal.
Ms Tomlinson-Blake and Mr Shannon’s claims failed at the final hurdle of the Supreme Court. The Court distinguished between “actual work” and “availability for work” and held that the national minimum wage is only payable when the worker is awake and dealing with care needs.
Mencap states it only fought these cases because of the historical burden of underpaid national minimum wage and the devastating effect this would have on the sector and society at large. The charity pays its workers for sleep ins.
Mencap and Unison, although on opposing sides in the litigation, have written jointly to the Prime Minster calling for immediate reform of minimum wage laws affecting thousands of care workers. They said they are “united in the same vision” of a “properly funded care sector” and that “paying staff decent wages is a major part of this”. The Supreme Court’s finding is a “huge blow” to care workers and is likely to mean they will earn less.
Disciplinary issues can occur in any workplace at any time. However, the pandemic has brought a new range of issues, from employees refusing to return to work, to individuals exploiting the situation for unnecessary time off.
However, there is also the challenge facing employers of doing all they can to avoid it getting as far as the disciplinary stage in the first place.
As we face going into 2021 with a continuing pandemic and an extended furlough scheme, December’s blog post will focus on prevention and cure (from a workplace standpoint)… How to use performance management to best avoid disciplinary processes during a pandemic, and considerations to make when disciplinary is the only option left.
The main reason that disciplinary matters arise is due to the employee not performing to the employer’s satisfaction. Many performance-related problems are rooted in a lack of communication, guidance, or even a lack of training for the employee. Much responsibility is on the employer to do everything reasonably within their power to help the employee understand and meet their expectations and the requirements of the role.
Firstly, there should be a clear job description, with accompanying goals and reasonable timeframes. Performance should be reviewed regularly through an appraisal process, where the employee can learn where they are doing well and where they need to improve. Appraisals should identify any need for training, and give employees an opportunity to voice any concerns or discuss any challenges.
Particularly appropriate during a pandemic, are employee counselling sessions. Counselling offers support and assistance to the employee, inviting them to take a step away from the role, and find ways to tackle challenges as a whole, with regards to personal, social and professional issues. Counselling should form part of the organisation’s stress management policy.
At Consensus HR, we provide Recorded Counselling sessions, aimed at trying to solve problems before they reach the point of requiring more drastic, formal or official procedures. Through these, we aim to fill any gaps or remedy any breakdowns in communication between employees and employers (which can often be at the root of problems), and put in place a plan of action for addressing the issue, along with advice as to the consequences if improvement is not seen. This plan, along with timescales and benchmarks that need to be met, is formulated and agreed upon by both parties.
If a reasonable time passes and the employee’s performance does not improve, despite 1-to-1 discussion, appraisal, counselling and training (where appropriate), the employer may proceed to consider formal investigation and disciplinary processes, in accordance with the ACAS Code of Practice.
These steps apply to all performance management situations, but as we navigate a pandemic, it is important to consider any challenges the employee may be facing outside of their working life. The lockdowns and accompanying restrictions have led to health, welfare, logistical and mental health issues for a high percentage of the population. These facts should be accounted for as far as reasonably possible.
Then, there will be cases where despite every attempt to effectively manage 
performance, the only option left is disciplinary.
Many managers question whether to go through with disciplinary processes at this time, or to put them on hold until things settle down. Our advice remains the same as prior to the pandemic – a fair process must be ensured for all disciplinary matters. The process must be ‘reasonable’, and may be conducted away from the workplace through alternative means, but it is essential that it is carried out appropriately given the circumstances.
A few questions employers should ask themselves in considering the disciplinary route…
Furloughed employees are not permitted to work for the employer, but having them attend a disciplinary hearing could be considered work. To avoid jeopardising furlough pay claims, the employer should bring the employee back from furlough for the hearing, even if only for one day.
Many employees working from home are using video conferencing technology. However, consideration must be given as to whether the employee in question has access to this technology, as well as whether they feel comfortable using it. If the employee struggles with either aspect, it puts them at a disadvantage and opens you up to claims of an unfair process.
If a hearing is to be virtual, and the employee is working from home, are they caring for young children or other family members? Do they live in a shared space or in a high traffic area? Would their situation be subject to noise, disruption or distraction that would not otherwise be present if the hearing was conducted in the workplace? If so, they may not be a suitable environment for such an important meeting.
Employees have the right to be accompanied to a disciplinary hearing by a trade union representative or a colleague. If taking place virtually, everyone involved must be happy with the arrangement. If, however, the employee wishes to be accompanied but the circumstances make it impossible, and you choose to proceed anyway, you will be at risk of a claim that the process was not carried out fairly.
Although virtual meetings are proving successful, with a matter as sensitive as disciplinary, it is ideal to conduct hearings in person. Therefore, it is important to figure out whether the matter can wait. Ask yourself whether any sanctions resulting from a disciplinary can actually be implemented while the employee is furloughed or working from home. Also consider whether the employee feels a matter of urgency, in that they wish to be heard right away.
As with most situations, prevention is better than cure. Wherever steps can be taken or procedures put in place for effectively managing employees’ performance, they should be. But if disciplinary action does appear to be the only remaining option, the presence of a pandemic should not delay employers in confronting issues that need to be dealt with. Conducting a fair process, during peacetime, lockdown or otherwise, is always paramount.
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