Welcome all to the May edition of the AdviserPlus newsletter.
In this month’s newsletter, we start with an important update from the Home Office regarding right to work checks and then as organisations start to plan for the post-pandemic workplace we will be focusing on the key considerations for employers including the effects of long COVID, employee’s mental wellbeing and keeping the workplace safe.
We will also take a look at some key learnings that can be taken from recent cases involving the national minimum wage and sleep ins and the importance of regular equal opportunities training.
Right to Work Checks from 17th May 2021
During the pandemic employers have been given the flexibility to check an individual’s right to work in the UK using scanned document copies however, updated Home Office guidance means that from 17 May 2021 employees will now need to either:
- View and copy original right to work documents and verify these either in person or via a video call with the new starter; or
- Use the online right to work checking service if the applicant or employee has provided a share code.
Please note that employers will not be required to carry out retrospective checks of original documentation for any documents that have been checked remotely between 30 March 2020 and 16 May 2021. You may, however, want to just audit any remote checks that were carried out during this period just to ensure you are satisfied you have the appropriate right to work evidence available in the event of a Home Office inspection. Remember document copies stored on file need to be endorsed with who carried out the check and the date the document was verified via a video call.
Long COVID symptoms could affect someone’s ability to work or cause them to take sickness absence and the usual rules for sickness absence and sick pay apply when some-one is off for this reason. One thing employers need to note is that the effects of long COVID could come and go requiring intermittent absences. Employers therefore should be agreeing how and when contact should be made during any period of absence and talk about ways to support them as they return to work where and when it is possible.
Other support to consider is getting an occupational health assessment, consider what reasonable adjustments could be made such as different working hours, a phased return to work and what they want to tell others at work about the illness. Ensure you have done everything you can as an employer before considering a capability procedure if you are finding the employee is not able to do their work or is taking a lot of absence. This is in order to mitigate the risk of a potential unfair dismissal claim being made at a tribunal.
Is long COVID considered as a disability?
It is still a new illness and it is going to take time to fully understand it and the effects of long COVID could also cause other impairments. Therefore, it is a good idea to focus on the reasonable adjustments that can be made to support your employee through this time.
As well as disability, employers must be careful to avoid other types of discrimination when considering long COVID. Particularly as long COVID has been found to more severely affect:
- Older people
- Ethnic minorities
Mental Health Awareness Week (10-16th May)
Nature and the environment are the themes for the year’s Mental Health Awareness Week. The evidence is clear that access to nature is crucial for our mental health, and millions of people discovered that during lockdowns in 2020.
Also, new results from the landmark Mental Health in the Pandemic study show that one year on, the crisis has had wide and deep emotional impacts on UK adults. Loneliness has become much more common place, and this is a problem as connections with others help us cope with difficulties and losing those connections means less emotional support in a time that has challenged almost everyone.
It is important to remember that whilst all have been in the same storm, not everyone has been in the same boat and whilst there is hope ahead in the coming weeks and months, for many, it will remain tough, vulnerable and uncertain. You may also find for these reasons many of your employees are eager to return to the workplace and can’t wait to be seeing their friends and colleagues in their work environment once again however, there will also be the other side who remain extremely anxious about returning.
Keeping workplaces safe
The HSE has produced advice on keeping workplaces safe as restrictions are eased that covers the government’s roadmap out of lockdown in England and gives advice on returning to work safely. Please note there are different approaches to easing restrictions in Scotland and Wales.
By law, employers have a ‘duty of care’ for staff, customers and anyone else who visits the workplace. Employers must therefore do all they reasonably can to protect the health, safety and well-being of people at work, complete risk assessments and take reasonable steps to prevent harm and consult staff on any decisions that involve health and safety.
As we do slowly return if any of your staff are feeling anxious about their safety and returning, it is important to encourage them to talk, listen about any concerns they are having and try to resolve them together, take the steps required to keep everyone safe at work and reassure staff by telling them how the workplace has been made safe.
Whilst staff should be ready to return to work at short notice you may need to be flexible where possible but it may be useful to start now talking about when the workplace might reopen for those who have not already returned. Communicate how you are making it safe for them and how you intend to get views from them about any further changes, consider how they will travel to and from work, and whether there will be a phased return of the workplace for example, some returning earlier than others or a rota basis and the possibility of who will stay working from home or remaining on furlough if applicable.
31 May 2021 – Health and safety protection extended to workers
The Employment Rights Act 1996 (Protection from detriment in Health and Safety Cases) (Amendment) Order 2021 is currently awaiting Parliamentary approval and is due to come into force on 31 May. From this date, workers will gain the right not to be subjected to detrimental treatment for leaving or refusing to return to work if they believe themselves to be in ‘serious and imminent danger’. Previously the right under s44 of the Employment Rights Act 1996 only applied to employees.
The change follows a High Court decision last Autumn in a case involving the gig workers union, the IWGB, in that the government had failed to implement the EU Health and Safety Framework Directive properly into UK law by omitting workers from s44 protection. The right is now being used more frequently by employees worried about travelling to or being in work during the Covid-19 pandemic.
News from the Courts
NMW and sleep-in shifts
The Supreme Court decision in the cases on Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) was published in March this year. The cases considered whether workers who sleep-in and are only required to awake in the night to carry out duties if needed, are entitled to the national minimum wage (NMW) for the full duration of their night shift. The Supreme Court took a purposive approach to the meaning of the NMW regulations and agreed with the Court of Appeal that the care workers were merely available for work during their sleep-in shift, rather than actually working, and they were therefore only entitled to the NMW for time spent awake and working.
The importance of regular equal opportunities training
The recent Employment Appeal Tribunal (EAT) decision in Allay (UK) Ltd v Gehlen is a reminder to employers to keep equal opportunities training up to date in order to rely on the statutory ‘reasonable steps’ defence in discrimination and harassment claims.
Under the Equality Act 2010, an employer can be vicariously liable for discriminatory actions of their employees regardless of whether the employer had knowledge of the employee’s actions. Under section 109(4), an employer has a defence if it can show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act or from doing anything of that description.
In this case, the EAT’s decision was that they held the tribunal was entitled to reach its decision that the training provided by Allay had become stale and that a further reasonable step would have been to refresh the training. The EAT also looked at how effective the training was due to the comments that were made by the perpetrator who believed it was just ‘banter’ and the lack of action that took place by other employees upon becoming aware of the comments. The decision, therefore, serves as a warning to employers who have not recently reviewed and refreshed their anti-discrimination policies and training in relation to them as a failure to do so can deprive you of the statutory ‘reasonable steps’ defence and leave you potentially exposed to being vicariously liable for the discriminatory acts of its employees. Policies and training in place cannot also be just a tick box exercise and there needs to be clear reporting lines for employees who wish to raise concerns which are fully communicated to staff.
Note: The above guidance was correct at the time of writing this article on 16/05/21 however, you need to be fluid in your approach to coronavirus as the policy and government guidance is changing rapidly. We therefore recommend you regularly check the government official guidance on the gov.uk website and news for updates or contact us if you have any specific questions.
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.