Mandatory COVID-19 Vaccinations are not required for Care Home Workers
Mandatory vaccinations became a requirement to work in a care home from 11th November 2021. This was due to be extended to all patient-facing staff in the health and social care sector on 1 April 2022.
On 31st January 2022, the Government announced that a public consultation would be launched on whether to revoke mandatory vaccinations. The consultation response was published on 1 March 2022. As a result of the consultation, regulations came into force on 15 March 2022 revoking the requirement for vaccination as a condition of deployment in health and social care settings.
Care home staff will no longer be required to be vaccinated against COVID-19 to enter care homes. While this is good news for the health and social care sector, there is still a possibility that mandatory vaccinations may be re-introduced in the future.
What to do next?
Care homes and those who were due to be affected in the health and social care sector from 1 April 2022 will now need to:
1. Review and update policies.
It is important for all employers to be aware that they have a duty to protect the health and safety of employees. As a result, employers are urged to carry out risk assessments and it is still likely that those providing health and social care will have a policy that recommends vaccination.
2. Update contracts that had been changed to refer to mandatory vaccination
3. Consider any cases of employees who are on notice or have been dismissed due to not being vaccinated. Employers should review these decisions against the change in regulation and their updated policies.
4. Keep health and safety risk assessments under review.
5. Discuss with their employees that there is no longer a requirement for their continued employment.
Mergers & Acquisitions and all things TUPE
The Transfer of Undertakings Protection of Employment (TUPE) is a complex and technical process aimed at protecting employees. The regulations apply when employers are transferring a business or in a service provision change scenario.
If you are a business owner and are on the acquisition trail or about to divest or merge with a business the checklist provided in this blog will guide you to ensure that you have covered all the important steps involved in the process.
The specific steps involved in the TUPE process will vary depending on the circumstances. Whatever the case may be, it is risky if it’s not handled correctly.
You are required to consider the following key areas:
- Identifying impacted employees
- Gathering information and consultation
- Employee liability information
Identify all impacted employees
This is often the most difficult part of the process. It involved identifying the staff members to transfer to the incoming employer.
The decision will depend on their roles before the transfer. Staff on short-term absences as well as those on fixed contracts will need to be considered.
If you are selling the whole business, then all employees will transfer. If you are transferring a service provision, you will need to consider the employees working within part of the business.
Other considerations include:
- Informing and consulting with employees about the transfer
- Engaging with trade union officials or elected representatives
- Use existing communication channels to provide information directly to employees
- Provide communication mechanisms to answer questions and address any employee concerns
Gathering information and consultation
After establishing the employees affected by TUPE, you need to provide information about the employees to the incoming employer.
You should provide the following information:
- The fact that the transfer is taking place
- The date of the transfer
- The reason for the transfer
- The legal, economic, and social implications
- Any proposed measures connected with the transfer that’ll affect the employees if no measures are in place
There is no set time limit for providing this information, you should complete it in sufficient time.
Employee liability and due diligence
As well as employers providing information to their employees you are also obligated to provide the incoming employers with certain information.
Regardless of if TUPE applies, if any organisation is buying a business or bidding for a contract to provide a service must undertake due diligence. This allows for financial forecasting and determining the terms and conditions of the transferring staff.
28 days before the transfer you must provide the buyer with information relating to the rights and obligations of the transferring employees in writing. If you fail to do so it can result in compensation by a tribunal.
D Topping v Steppingstones Nursery (Hoddlesden) Limited
Darci Topping was employed by Stepping-Stones Nursery in Hoddlesden when she found out she was expecting her first child in March 2020. Her employers were informed a week after starting her new job.
The 23-year-old who was on minimum wage at the time was questioned about her pregnancy by her managers and was quizzed about the baby’s father and her intention to go through with the birth. The employment tribunal heard that she was pressured into reducing her hours as the Covid-19 pandemic hit and then made redundant unexpectedly.
The tribunal judge found the nursery liable on all counts of detriment on grounds of pregnancy; unfavourable treatment on grounds of pregnancy; and unfair dismissal on the ground of pregnancy.
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£25,000 awarded for unfair dismissal due to pregnancy
Unfair Dismissal Claims & How to avoid them
Unfair Dismissal Claims & How to Avoid Them
An unfair dismissal can occur when your employer terminates your contract of employment with or without notice or the employee terminates their contract of employment with or without notice due to the conduct of your employer.
A dismissal is automatically considered to be unfair if you are dismissed for any of the following reasons:
- Membership or proposed membership of a trade union or engaging in trade union activities
- Religious or political opinions
- Legal proceedings against an employer where you are a party or a witness
- Race, colour, sexual orientation, age, or member of the Traveller community
- Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
- Availing of rights under legislation to maternity leave, adoptive leave, parental leave, carer’s leave, parental leave, or force majeure leave
- Unfair selection for redundancy
Steps to avoid Unfair Dismissal
Have clear policies
It is important to ensure that all new and current employees have access to the companies’ policies regarding harassment, dress code and attendance policies. The policies must be easy to read for the employee and available to them at any stage during their employment. These policies are not only to keep employees informed but they are used as important reference points to use as the employer during the disciplinary process. Failing to follow these policies can result in an unfair dismissal claim.
HR & Equality training
Employers need to make sure that the dismissal is thoroughly thought through beforehand and is not an impulsive retaliation to an employee’s actions. By providing training for all staff members involved in the dismissal process you will know that the process is being conducted legally.
Keep track of employee conduct
Terminating an employee can sometimes devolve into a he-said she-sad argument with no clear winner. Without proper documentation, it can be difficult to terminate an employee without fearing an unfair dismissal claim. When you begin to see that an employee might not be suitable for your company, start keeping track of their misconduct. Use a word document or journal to keep track of any problems the employee encounters. For example, take note of any time they showed up late or were not dressed appropriately.
Implement a performance management plan
When you first discuss with the employee about potentially dismissing them, you will need to set up a performance management plan to give your employee a chance to improve. If you still need to terminate this employee, the document plan shows that you tried to help your employee. Employers can do this by setting up parameters and goals for their improvement.
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Age discrimination case against Asda
In the case of Hutchinson v Asda stores, Joan Hutchinson was employed as a shop floor assistant within the George clothing department. She worked 25.3 hours a week and enjoyed her role. As part of her role, she stripped deliveries, merchandised on the shop floor, followed planograms for new layouts and delivered excellent customer service.
Her son noticed that his mother was showing symptoms of dementia. During the Summer of 2019, he noticed that her driving skills were impaired when she drove the wrong way around the roundabout. She gave up driving in March 2020 and began travelling to work by bus. She accepted that her dementia was getting worse when she had to walk to work after being unable to find the bus stop. The staff at her branch in Deeside, North Wales, noticed her slowing down at work, becoming flustered and losing her personal belongings.
The tribunal heard that while Ms Hutchinson was shielding in 2020, Ms Weston-Laing went to her home to bring her shopping. The claimant returned to work on the 9th of July 2020, and throughout the course of the day, Weston-Laing was concerned about her performance and needed to be reminded of social distancing.
On her return to work, a colleague looked in her bag when she could not find her keys and bus pass, which violated her dignity. The next day she arrived to work an hour early, as she had the previous day due to revised bus times, but this was seen as another indication of her confusion.
Weston-Laing and another colleague decided to hold a meeting to see if there was anything that the store could do to support her. The claimant became upset and aggressive saying that she did not need help and that if she did, she would ask for it. She was also asked to speak to occupational health and said, “I cannot do my job, I will leave.” She then walked out and did not return to work after being signed off sick.
She resigned in September 2020 after she felt like she was being pushed out of the business and too old to be there.
Mrs Hutchinson won her claims of age and disability discrimination as well as constructive dismissal.
Employers need to be aware that even well-meaning comments and actions can be held to amount to discrimination or even harassment on the ground of disability and age. Asking older employees if they would like to retire is risky and can make them feel unwanted and upset.
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Redundancy Part Two: Redundancy Procedures
As discussed in our Redundancy Part One blog, "Redundancy Part One: What it is & What to do”, every employer should consider having a formal redundancy procedure. The exact procedures will vary according to the time and size of the redundancy programme. Organisations should follow these stages as a minimum:
- Planning
- Identifying the pool for selection
- Seeking Volunteers
- Consulting employees
- Selection for redundancy
- Suitable alternative employment
- Appeals and dismissals
Planning
Employers should always try to avoid redundancies and consider different options such as:
- Recruitment Freezes
- Stopping or reducing overtime
- Offering early retirement to volunteers
- Retraining or redeployment
- Pay freezes
- Short-time working
It is important to note that employers will not be able to adopt these options without breaking their employees’ contracts.
Identifying the pool for selection
The group from which employees will be selected for redundancy must be identified carefully. It consists of at least one of the following:
- Those who undertake a similar type of work
- Those who work in a particular department
- Those who work at a relevant location
- Those whose work has ceased or been reduced or is expected to be.
Seeking Volunteers
To avoid compulsory redundancies, offering a voluntary redundancy package and seeking volunteers may avoid this.
Consulting Employees
Employers are required to consult employees and give them a reasonable warning of redundancy. There is no minimum statutory timescale when less than 20 employees are made redundant the consultation must be meaningful and be covered by contractual terms or policies. The employee is also entitled to be accompanied at all consultation meetings by a trade union representative or a colleague.
If more than 20 employees at one company are to be made redundant, collective consultations with recognised trade unions or elected representatives must start within minimum time scales:
- At least 30 days before the notification of redundancies for dismissals of 20-99 employees.
- At least 45 days before the notification of redundancies for dismissals of 100 or more.
Collective consultation must be completed before the notice of dismissals are issued to employees.
At the start of the consultation process, the employer is legally obliged to give the following information to the representatives:
- Reason for redundancy dismissals
- Number of redundancies and their job types
- Number of employees affected
- Methods of selection
- What procedure is going to be followed while dealing with the redundancies
- How redundancy payment is going to be calculated
Selection for redundancy
Once the consultation is finished, the employer may need to choose individuals from within the selection pool if there are not enough volunteers for redundancy. These choices must be based on objective criteria such as:
- Length of service
- Attendance records
- Disciplinary records
- skills, competencies, and qualifications
- Work experience
- Performance records
Suitable alternative employment
Employers must consider offering alternative work to redundant employees. If the employee refuses alternative work, they might lose their entitlement to a statutory redundancy payment. Employees can trial the alternative work for a period of four weeks. If the employer and the employee both agree that the role is not a suitable alternative, then the employee reverts to being redundant.
Appeals and dismissals
Employers should give written notice to those selected for redundancy. Employees should be notified that they are at risk of redundancy and be invited to individual meetings. Once the individual consultation is complete, the employer must decide whether the employee is to be made redundant and give them their written redundancy notice.
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Redundancy Part One: What it is & What to do
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