Welcome to the October edition of the AdviserPlus newsletter.
In this month’s newsletter, we will look into some key upcoming dates including a closer look into it being made mandatory for all care home workers to be fully vaccinated. We will also explore the recent Government announcement that flexible working applications shortly may be requested from Day 1 of employment.
Due to the many challenges employers may have faced during this past year, coupled with the Coronavirus Job retention scheme ending on 30 September, many employers may find themselves with an abundance of untaken annual leave with little time for employees to take it without having a detrimental impact on the business. We will therefore look at some of the ways employers may wish to explore to effectively manage untaken annual leave.
Finally, with World Menopause Day taking place on 18 October we remind ourselves of some key tribunal findings in relation to menopausal symptoms.
Employment law dates at a glance
Gender Pay Gaps: From 5 October 2021 EHRC are now enforcing publication of gender pay gaps for public and private companies.
Compulsory Double Vaccinations: From 11 November 2021 all workers over 18 (unless medically exempt) employed to work in care homes in England, registered by the CQC, providing personal or nursing care, must be double vaccinated. This extends to others coming into the home to provide services. (See below for more information)
SSP Rebate Scheme: All claims under the SSP rebate scheme, which closed on 30 September 2021, must be made by 31 December 2021 in order for employers to get money back under this scheme.
Amended Right to Work Checks: In person checks of right to work documentation will revert from 5 April 2022
Compulsory Vaccines for Care homes
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 make it mandatory for registered persons of all CQC registered care homes to ensure everyone entering the care home has been vaccinated, subject to certain exemptions. The Regulations will affect all care home staff, local authorities, trades people and anyone who needs to come into the home, apart from residents and their family and friends.
We recommend having a clear policy which is accessible to all who it applies to. Remember, the CQC will want assurance from all care homes that there is a robust governance process in place to monitor vaccine status and that reasonable adjustments have been made where appropriate to ensure the safety of residents. A failure to provide this assurance is likely to result in enforcement action.
With the deadline of 11 November looming we would recommend ensuring that all the necessary steps including but not limited to; ensuring staff and regular visitors to homes are aware of the requirements to be vaccinated, consider the plan if any staff are not going to be fully vaccinated in time as we have past the last date for the first dose to ensure employees can have the second dose in time, consider the plan for those employees who are not intending to be vaccinated, plan how you will monitor and check vaccine status and bear in mind data protection principles.
Day-one right to flexible working
Following the recent Government announcement, employees will soon no longer have to wait until they have been employed for 26 weeks before making a flexible working request. This means you will be obliged to consider requests from the first day of employment.
Other key areas of the current flexible working that may change include:
- Reducing the current three-month period in which you have to respond to flexible working requests;
- Amending the list of reasons on which employers are permitted to relay when refusing a request, therefore your refusal needs to have a more robust, objective justification than the current reasons for rejecting a request;
- Requiring employers to consider and potentially suggest alternative flexible working arrangements if they are unable to agree to an employee’s request;
- Allowing the employee to make more than one request a year and emphasising that requests can be made for flexible working arrangements as well as permanent changes.
The thrust of the changes will be to encourage meaningful dialogue about flexible working arrangements, recognising the business and personal benefits that such arrangements offer. However, it still remains a right to request, not a right to demand.
It is unlikely any changes will come into force until mid to late 2022 at the earliest. Once the scope of the changes is clear, employers will need to review their flexible working policies and procedures to reflect the new rules. In the meantime, employers may want to consider more open flexible working arrangements during the recruitment process rather than wait until some-one is appointed and who then makes a flexible working request straight away. Having said that, you will not be required to advertise jobs as available on a flexible basis and you will not have to publish your flexible working policies.
Effective management of annual leave
So far it has been an extremely turbulent year with a lot of uncertainty around travel and you may have had peaks and troughs with your trade making it difficult for your employees to take their annual leave entitlement.
If you have employees who have a build-up of untaken leave, make sure you communicate as early as you can how you would like them to approach booking their time off during the coming months. Encouraging employees to take a break throughout the year not only gives them the opportunity to rest and recuperate but it is also a health and safety requirement under the Working Time Regulations.
If due to a busy trading period between now and the end of the holiday year which is going to make it challenging for all colleagues to take the leave, there are a few points you could consider which would assist that management. One could be, you buy back holidays providing you have a generous holiday scheme and the employee is still able to take the statutory minimum of 5.6 weeks, another option could be make use of the law the government introduced in 2020 which allows employees and workers to carry over up to 4 weeks’ statutory paid holiday into the next 2 holiday leave years.
This law, however, only applies to employees who could not take their leave because of Covid -19 and reasons such as; they were self-isolating or too sick to take holiday before the end of their leave year or that that have had to continue working and could not take paid holiday. It may also be possible to carry over holiday if they’ve been on furlough and cannot reasonably use all their leave in the holiday year.
World Menopause Day – Monday 18th October
World Menopause Day is held every year on 18 October. The purpose is to raise awareness of the menopause and the support options available for improving health and wellbeing. In light of this it is worth reminding ourselves of a tribunal outcome at the end of last year which found that menopausal symptoms can amount to a disability. Whilst women going through the menopause don’t have explicit statutory protection from discrimination the findings concluded that menopausal symptoms amounted to a disability and subsequently triggers the duty to make reasonable adjustments. In this case the women’s symptoms included fatigue, disrupted sleep, anxiety, memory loss, difficulty concentrating and hot flushes. The symptoms had lasted two years and were enough for the tribunal that she attributed her symptoms to the menopause.
Note: The above guidance was correct at the time of writing this article on 13/10/21.
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.