Newsletter: June 2022

Welcome to the June edition of the AdviserPlus newsletter.

In this month’s newsletter we will be looking at some of the debates affecting employment legislation that have been taking place in Parliament including the debate about firing and then re-hiring employees on different terms and conditions and how the government is responding to the increased number of Union strikes which are currently impacting the nation and look set to impact more and more people as we head into the key summer weeks. We will also explore what’s new in Employment Law including the SSP reforms and how fit notes will be able to be certified by other healthcare professionals from next month. Finally, we will explore a little further some of the recent key tribunal findings around Covid 19 and unfair dismissal and how a recent tribunal ruling could be good news for employees who claim they have suffered discrimination because of their lingering Covid symptoms.

The Fire and Rehire Debate

The subject of “fire and re-hire” is currently a hot topic and a clear focus for the Government and was debated in parliament on 15 June 2022 where it was announced that a draft Statutory Code of Practice on dismissal and re-engagement will be published for consultation during the summer.

Of late there have been numerous high-profile employers criticised for adopting a “fire and rehire” process and whilst many have called for the process to be unlawful, the implication of what the government is proposing would be that the practice becomes subject to certain guidelines (and penalties for breaching them), in the same way that disciplinary dismissals are – but that it does not become unlawful.

Employers planning to change terms and conditions should, before taking action, seek legal advice, and be mindful of the risks, including the potential reputational damage and impact on employee relations. Watch out for further information on this later on in the year.

The Government’s response to the increasing number of Union strikes

On 23 June 2022 it was announced that new legislation is being introduced to allow businesses to use agency workers to carry out duties of employees engaged in industrial action giving companies more freedom to fill vital roles more easily so that peoples’ daily lives remain uninterrupted.

Currently, trade union laws do not allow this, but the new statutory instrument will allow this for the operation of public services, particularly in view of the recent disruption to train services. Businesses will still need to comply with broader health and safety rules that keep both employees and the public safe and therefore it would be their responsibility to hire cover workers with the necessary skills and/or qualifications to meet those obligations.

The new legislation would also help mitigate against the impact of future strikes and will apply across all sectors across England, Scotland and Wales to ensure that businesses and services can continue operating. Subject to parliamentary approval, these changes will be made through a statutory instrument and are set to come into force over the coming weeks.

The Government is also intending to raise the cap on maximum damages that the court can award against unions who arrange an unlawful strike action for up to £1 million.

The Four-day working week trial

Earlier this month over 3000 employees across 70 UK businesses started their six-month trial of a four-day working week. The purpose of the trial is to try and understand whether only working 80% of working time with no impact to pay, will deliver the same productivity levels.

The trial will aim to take into consideration what the impact of a shorter working week has on workplace equality and the recruitment and retention of talent versus the potential pitfalls such as increased pressure (and decreased productivity) in the shorter week and issues for certain industries where a five (or more) day cycle is necessary to meet client/customer demand.

It remains to be seen whether this trial will produce results that are both beneficial to employees and employers, although studies elsewhere in the world have shown some positive effects.

What can we expect to see in the second half of 2022?

Fit notes to be certified by other healthcare professions

As it stands any employee who is off work for more than seven days are required to submit a doctor’s “fit note” to their employer to evidence their sickness.

From 1 July 2022, Pharmacists working in general practice or hospital settings (along with nurses, occupational therapists and physiotherapists) will be able to legally sign/certify sick leave certificates. The purpose of the new legislation is to free up GP’s so they can focus on more complex work and to ease the pressure currently on surgeries.

Community pharmacists will not be able to issue fit notes signing patients off work under these planned legal changes, as they will not have access to patient information/notes to make a full assessment, as appropriate.

The changes follow the introduction of digital certifying of fit notes in April 2022, simplifying the process of issuing and receiving fit notes.

Proposed SSP reforms

A recent report suggests reforms to the SSP system could boost the UK economy by around £3.9 billion over 5 years. The report, Statutory Sickness Support, commissioned by Unum UK and conducted by WPI Economics, has said by moving from a system focused on payments to one designed to deliver proactive and effective employee support, businesses could reduce the overall number of sick days taken.

While SSP is currently £99.35 per week – around 28 per cent of the average earnings of someone eligible for the benefit – the report suggests increasing this to 63 per cent of average earnings. The proposal also calls for eligibility to be widened, noting that currently 70 per cent of women do not qualify at all for SSP, and for businesses to be provided with targeted guidance and support on how to create better sickness management policies.

The report also suggests that by investing £500m into helping smaller businesses pay for SSP and improve their mental and physical health support for staff, the Treasury would still see a reduction in its overall costs when balanced against the outlay of the current system.

Recent Case Law

COVID-19 – automatically unfair dismissal: Rogers v. Leeds Laser Cutting

In Rodgers v Leeds Laser Cutting Ltd, an Employment Tribunal ruled that an employee, who was dismissed by his employer for refusing to attend his place of work due to Covid-19-related concerns and the risks they posed to his vulnerable children, was not automatically unfairly dismissed.

In this case, it was found that his concerns were not particularly attributable to the workplace, and his employer was complying with the ‘working safely’ guidance in place at the time. Although the EAT concluded that, in principle, circumstances outside of the workplace could give rise to a reasonable belief of serious and imminent danger, it was relevant on the facts of this case that the claimant did not wear a face covering, had breached self-isolation rules and could have taken precautionary steps at work, such as maintaining self-distancing and regular sanitisation of his hands.

While this case was relating to events in April 2020, when life was very different to what it is now, this case will hopefully reassure employers with workers who are reluctant to return to work at the present time. However, employers should still remain cautious, comply with their health and safety obligations and be mindful of individuals’ specific circumstances as on alternative facts there may still be the potential to satisfy the ‘reasonable belief of serious and imminent danger’ test.

COVID-19 – long-Covid can amount to a disability for the purposes of the Equality Act 2010: Burke v. Turning Point Scotland

This month a Scottish Employment Tribunal ruled that an individual suffering from long-Covid was “disabled” for the purposes of the Equality Act 2010 and could therefore bring a disability discrimination claim against his former employer. The employee had contracted Covid-19 in 2020 and was unable to return to work for 9 months due to suffering symptoms of long-Covid. He was dismissed due to his continued absence and being too ill to return to work.

Although the decision is not binding on other tribunals, it will be interesting to see whether this ruling will result in a spike in tribunal claims brought by those who feel they have been treated unfairly as a result of having long-Covid.

Employers need to take away that an assessment is still needed to be made on the individual’s specific symptoms and whether they’re substantial and long-term enough to potentially give rise to a disability. Therefore, it is important to obtain medical evidence, ensure you have all the facts and consider what reasonable adjustments may be appropriate to help employees suffering from long-Covid. Keeping an open mind and engaging in dialogue with employees will be key.

Note: The above guidance was correct at the time of writing this article on 29/06/22. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.


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