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Although earlier in the year, media coverage suggested mass redundancies were to follow the end of the furlough scheme (which closed at the end of September this year), fortunately this doesn’t seem to have materialised.

In the penultimate month of the scheme, August of this year, almost 1,300,000 workers were still on the scheme. Although this number seems high, the scheme was it an 85% reduction of it’s peak amount.

According to recent government statistics, collective redundancies were actually at a seven-year low this August. Whilst this figure is comforting, it is silent on individual redundancies, which involve 19 or less employees.

For employees who had furloughed large numbers of workers, it’s reported that many employees who were furloughed are now continuing in their employment; resulting in fewer people out of work than was first anticipated, young people in particular show decreased unemployment statistics. However, with the impact of Brexit hindering worker supply, between July and September this year vacancies are at a 20 year high with 3.7 job vacancies for every 100 jobs.

We’ve already seen the impact of this with unusually high wages being offered for work such as lorry driving and warehouse work. Moreover, employers must now balance offering a higher wage against the needs of business, and perhaps offer alternative such as parental leave, buy and sell holiday, as More sustainable, affordable alternatives.

From Monday, 16 August 2021 those who have had both coronavirus vaccinations or are aged 18 and under can go into the workplace even if they are in close contact of a positive case.

From Monday 16th August 2021 do employees still have to tell the employer that they’ve been identified as a close contact of someone who has tested positive for coronavirus?

This depends on your workplace policy and whether they themselves have tested positive or developed symptoms. If they do test positive or have to isolate because they’ve been in contact with a positive case, they have a legal duty to self isolate for 10 days unless exempt.

If the employee does have a legal duty to self isolate, they have to inform the employer of this unless they are working in the place they are isolating from such as working from home.

Regulations provide that from today, anybody who has been double vaccinated or aged 18 or under does not have to self isolate after being identified as a close contact of a positive case unless they also test positive themselves.

Anyone who isn’t part of these exemptions will still continue to self isolate as before.

In order to qualify for these exemptions employees must have had their second vaccination at least two weeks before they came into close contact with the positive case.

For example if someone had the second dose on 10th August they would still need to isolate until 24 August if they’re identified as a close contact with a positive case during that time.

Test and trace are continuing to notify people who are close contacts with positive cases and will recommend that the contact has a PCR test to determine whether they are also positive for the virus.

If they then test negative they do not need to have any further PCR tests unless they develop symptoms.

Please note that close contacts do not have a legal duty to take a PCR test, and should they choose not to be tested. you will not know that they’ve been contacted and therefore could be asymptomatic unless you specifically ask them to tell you if they are identified as a contact of somebody with coronavirus.

Test and trace will also inform the contact that they must self isolate unless they are exempt under these new rules.

Does an employee who is self isolating before 16th August have to continue to self isolate beyond that date?

This depends on their circumstance. Anybody who is exempt under the new regulations is allowed to stop self isolating from midnight on Sunday 15th August. However if they are not exempt, they do have to continue to isolate for the full 10 days.

Do these new regulations also apply to those who are pinged through the test and trace app?

No. Anyone who was notified via the app is advised to isolate for 10 days however they are not legally required to do so.

It is expected the government will tweak the wording of these notifications to make clear that those who are notified don’t have to isolate if they are under 18 or have had both vaccinations. This would bring their advice in line with the new legalities.

Do I need to check that employees are exempt from the duty to self isolate?

This depends on the nature of your business and how much contact each staff member will have with others, whether your staff work with those who are clinically vulnerable etc.

There is no legal duty to check that employees are exempt, as the duty to isolate is on the individual. However, it is an offence to knowingly allow employees who should be self isolating to attend work.

Company directors and managers are also committing an offence if the breach of the employer is found to have been committed with their consent or acceptance through negligence.

Therefore we recommend you communicate your expectations to employees in regard to what happens if they’re identified as a close contact of someone who has tested positive for coronavirus.

There is still confusion around the new rules (specifically in regard to receiving a second vaccination two weeks before relying on exemptions to isolation) so there is a need to clearly communicate this to your employees. This point is particularly poignant if your business engages young workers, as many won’t have been offered a second vaccinations yet.

Make clear to your employees that if they attend the workplace after receiving notice to isolate, they are confirming that they are legally exempt from self isolation and have taken a PCR test which has come back negative. If employees do it and work when they should be self isolating, you will treat it as a serious disciplinary offence, which may result in their dismissal.

Can I ask employees to attend work if they are exempt from self isolation?

Yes. If they are exempt, they do not legally have to self isolate unless they themselves test positive for the virus.

Fully vaccinated employees are a lot less likely to catch coronavirus than partially vaccinated or on vaccinated employees, however, if your employees can work from home, it would be sensible to allow them to do so. This reduces the risk of catching coronavirus and spreading it around the workplace.

Can I expressly ask employees if they’ve been vaccinated?

Potentially, yes, however this would be collecting personal data and as it is also health data it is classed as special category data which affords even more protection. There are GDPR issues to consider.

The ICO has recently published guidance on vaccination and coronavirus status checks, which states that “before you decide to check people’s Covid status, you should be clear about what you are trying to achieve, and how peoples Covid status must be clear, necessary and transparent. If you cannot specify a use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it”.

In regards to the changes coming in on 16th August, the justification for collecting this information is clear where you have employees on site; you will need this information to make sure that employees are legally able to attend the workplace after being named a contact of a positive case. Moreover, you might need this information to protect other employees in the workplace.

Data protection rules are very often context driven, and the current ICO guidance recommends that you consider ‘the sector you operate in, the kind of work your employees do, and the health and safety risks in your setting.’

If employees are working from home, it will be difficult to justify collecting this information, you do not need to check whether they can come into work and stuff or they will not pose a health and safety risk.

The ICO guidance hasn’t yet been updated to reflect the new regulations on self isolation. Therefore, it is recommended that you keep checking official guidance, and take action if ICO advice changes.

What evidence can I rely on to check my employees covid vaccination status?

You should primarily rely on the official NHS Covid past verifier app, the online Covid past service, or by checking and employees NHS Covid pass later.

Also, unless there is a legal obligation to check vaccination status of your employees, you can also request to view the NHS vaccination appointment card.

What data protection issues do I need to consider as the employer?

You must only record data that you actually need and can justify collecting. Therefore you cannot collect personal data just in case. In regard to an employee’s vaccination status, The only information you will need to record is whether the employee has been fully vaccinated e.g. yes or no, and an indication of when their second vaccination took place, as this needs to be at least two weeks before you record this information. You don’t need to know what type of vaccine they receive, or the reasons why they chose not to be vaccinated.

It is also sensible to avoid allegations that you have collected any unnecessary data, you should ideally not collect everybody’s information on or just after 16th August, instead it should be collected when you need it e.g. when somebody calls in to ask whether they can attend the workplace, or when someone calls to ask if they need to self-isolate.

Whilst there is some complexity around asking about employees’ vaccination status, it is clear that you can require employees to notify you when they are required to self isolate. If they tell you they are required to self isolate, you can then ask about vaccination status.

In line with GDPR, you should ensure this information is recorded accurately, kept up-to-date, not kept for longer than necessary and only accessed by those who have a reason to access it.

Finally, it’s important to be transparent about how you are processing personal data. You should either add an addendum to your privacy notice or issue a standalone explanation, such as a letter, of how the data will be used in regards to self isolation and coronavirus vaccination status.

If you have any questions about this guidance or anything else HR related, feel free to contact us today on 0161 603 2156, for a friendly no-obligation chat around how we can help your business.

Now that the government have confirmed face coverings are no longer compulsory in hospitality shops or on public transport in England from 19th of July, businesses will be asking what the implications of this are for them.

From next Monday, rules change, instructing those in England to make their own decisions around whether they want to wear a face covering. Discuss businesses more flexibility in deciding whether or not to require the workforce to continue to wear facemasks within the workplace.

However government advice is to continue the encouragement of wearing face coverings if indoors around a large volume of strangers. Ultimately, within the workplace it is down to the employer whether or not face coverings are mandatory.

It has however been announced that on transport for London services and Manchester trams, face coverings will be a condition of travel except for those who are medically exempt.

In Scotland and Wales the rules are different, face coverings are still required in certain settings. Here we discuss what this means in practice for English employers…

Should I stop asking my team to wear face coverings in the workplace now that rules have been relaxed?

As a business, you still have a duty of care to safeguard health, safety and well-being of your workforce. This has not changed because of fluctuating government advice regarding face coverings.

In making your decision you should consider the nature of your team and listen to any concerns that were raised that is likely to be employees who welcome not wearing a face covering stop space however face coverings I worn to protect others around an individual rather than the individual themselves.

You may have younger employees who aren’t vaccinated yet or clinically vulnerable employees with concerns around other colleagues not wearing face coverings.

Employers need to review the coronavirus risk assessment in view of these changes. Reviewing your risk assessment will aid in a decision on which measures such as face coverings need to stay for the time being. Moreover, your policy on face coverings in the workplace needs to be updated and communicated to the workforce so that employees understand what the rules are.

If you do decide to make face coverings mandatory, remember that some of your workforce may be clinically exempt.

Alternatively, you may want to implement a policy that face coverings are no longer mandatory however if staff feel more comfortable wearing a face covering that they are welcome to do so or face coverings are only required in certain situations, such as large meetings etc.

Be prepared for resistance from employees that haven’t got the desired outcome from your new policy. Employees are however expected to comply with any workplace policies set by the employer. However, to manage any resistance to the changes, try to accommodate requests from individuals who are not happy with the outcome, and explain how their requests have been taken into account in your coronavirus risk assessment.

Also, it’s worth bearing in mind that public transport may also be a concern to employees, if others are no longer required to wear a face covering particularly in busy travel periods such as rush-hour.

If I eliminate face coverings in the workplace what can I do to ease concern from employees?

From HR and health and safety perspective, here are the measures to consider to help your workforce transition to returning to the office.

– encourage social distancing
– ensure work areas are well ventilated with open windows if possible
– continue with regular coronavirus testing in the workplace
– ensure excellent workplace cleanliness with plenty of hand sanitiser and extra hygiene measures
– allow employees to wear face coverings if they want to
– have a section in your face covering policy stating that if employees request colleagues within close proximity to wear a face covering that they do so
– remind employees to respect that colleagues wishes; there are many reasons employees may be uncomfortable with not wearing face masks which are not immediately apparent
– inform colleagues that it’s okay to politely let someone know that they aren’t comfortable with someone being close to them without a face covering on
– send out a letter (we can provide this for you) to encourage vaccine take up amongst employees
– if at all possible, consider paying employees on sickness absence leave with coronavirus in full (although it’s difficult for an employee to prove that they caught coronavirus at work, it will ease concerns that employees know if they do contracted the virus they won’t suffer financially)
– where possible, allow vulnerable workers to work from home until the majority of the workforce is vaccinated
– consider adjusting working hours for concerned employees so that they can avoid peak travel times

Summary

From next Monday (19 July 2021), it will be the employers choice whether or not to require the workforce to wear face coverings in the workplace.

Trying to balance the individual circumstances of employees will be a difficult task for employers.

Whichever decision employers come to is likely to be met with resistance from employees that oppose your decision. Ensure employee concerns are listened to, and the workplace coronavirus risk assessment is revised and available for employees to view.

Keep your risk assessment under regular review to control measures to combat the virus spreading.

Be prepared to justify your approach to the workforce. If you think you would benefit from assistance with anything discussed in this article, or anything else HR and employment law related, give our friendly team a ring today on 0161 603 2156 to discuss how we can help.

It’s pride month, and here at Supportis HQ we celebrate our LGBTQIA+ colleagues, clients and contacts all year round. We believe allyship in and out of the workplace is so important as an antidote to isolation for those targeted by oppression. In the last few days a major decision has been released from the Employment Tribunal regarding workplace views on transgenderism, here we discuss the implications of this decision, which some have condemned as regressive…

In this article, we discuss the case of Maya Forstater v CGD Europe and others, in which the Appeal Tribunal has held that a person’s views on whether someone else can identify as a different sex and gender to the one they were assigned at birth (identifying as transgender) is a philosophical belief and therefore protected under s.10 of the Equality Act 2010.

Ms Forstater, the claimant, tweeted that people can’t change their biological sex, and questioned government plans to permit people to declare their own gender.

Subsequently her contract wasn’t renewed following investigation after complaints from multiple colleagues who were offended by her comments, that she defined as “material reality”.

The claimant complained that she was discriminated against due to her beliefs. The employment tribunal (ET) then held a preliminary hearing to work out whether her beliefs were a “philosophical” within the meaning of The Equality Act 2010.

The ET described her belief as absolutist, and said that her decision to “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”.

However, the EAT (appeal tribunal) found that Ms Forstater’s belief did fall into the 2010 Act.

The matter will now, the EAT ruled, be remitted to a freshly constituted ET to work out whether the treatment about which she complains was due to or associated with that belief. However, Mr Justice Choudhury made it clear that this judgment doesn’t mean that the EAT has expressed any view on the merits of either side of the transgender debate.

He also emphasised that the judgment doesn’t mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity and nor does it mean that businesses won’t be ready to provide a secure environment for transgender persons.

This EAT ruling has been described as a step backwards for inclusivity and equality for all.

HR implications

Although EAT rulings are binding, it’s still uncertain whether this decision are going to be appealed and whether a Court of Appeal will side with the ET or this recent EAT decision.

As was made clear by the EAT judge, the choice during this case doesn’t allow individuals the liberty to harass others who don’t share their “philosophical beliefs” – simply because a view is classed as philosophical doesn’t mean that individuals can’t be mindful of how they manifest those beliefs.

With that said, employers must be mindful of the difference between an employee having certain views, however offensive, and using those views to cause offence or to harass others. this might be the difference between a good and unfair dismissal or discrimination of the individual who holds the philosophical belief. Crucially, where cases like this are observed within a company, it should be thoroughly investigated and a thorough disciplinary, or grievance, procedure needs to be followed.

If you think your business would benefit from watertight policies, procedures and round the clock HR advice contact our friendly team today to see how we can help on 0161 603 2156.

 

There has been speculation for a while around whether getting the coronavirus vaccination will become compulsory for things like jobs and travel.

Reports now indicate  the Government will indeed shortly confirm that he COVID-19 vaccine will be compulsory for workers in care homes. Although nothing is yet set in stone, it’s thought that affected staff will have a period of 16 weeks to get vaccinated, or face redeployment and possibly job termination in around 10,000 care homes across England.

It’s thought this will apply to care homes in England that:

  • are CQC-registered;
  • have at least 1 resident over 65; and
  • where the worker has no medical exemption from having the vaccine.

Similar rules could be put in place for other healthcare staff. Although nothing is confirmed, here’s what we know so far…

The Government is considering amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to increase vaccine take up

This would mean older adult care home providers could only use those staff who have received the Covid-19 vaccination (or those with a legitimate medical exemption) in line with Government guidance.

The Department of Health and Social Care (DHSC) explained: ‘older adults in care homes have been significantly affected by the pandemic because of their heightened risk of infection, often with devastating consequences, as well as the risk of outbreaks in these closed settings,’

In this context, a consultation has launched (now closed) seeking views on proposals to make the vaccination a condition of deployment in older adult care homes.

The Social Care subsection of the Scientific Advisory Group for Emergencies (SAGE) has advised that an uptake rate of 80% in staff and 90% in residents in each individual care home setting would be needed to provide a minimum level of protection against outbreaks of COVID-19.

This is for a single dose against the current dominating variant.

As of 4 April, 78.9 per cent of all eligible workers in all older adult care homes had received at least their first vaccination.

However, this masks significant variation at a regional, local and individual care home level. As of 8 April, 89 local authorities have a staff vaccination rate under 80 per cent, including all 32 London Boroughs, while 27 local authorities have a staff vaccination rate under 70 per cent.

The consultation document is currently being translated into a range of languages including Albanian, Arabic, Bengali, Chinese, Kurdish, Nepali, Punjabi, Polish, Romanian, Somali, Turkish, Ukrainian and Urdu.

What is the consultation considering? 

Care home managers are ultimately responsible for the safety of people living in their care. Under the proposed change to regulations, it would therefore be their responsibility to check evidence that workers deployed in the home are vaccinated, or medically exempt from vaccination. This means that workers would need to provide evidence to the manager that they have been vaccinated.

As a result, the government is carefully considering the best way for people to prove that they have been vaccinated to their employer. This may involve, for example, showing vaccination status on a mobile phone app. The government is also considering the least burdensome way for people to demonstrate to care home organisations that they are medically exempt from vaccination.

Looking at how this requirement would be introduced, the government is evaluating what would be an appropriate grace period for new and existing care home workers before they are required to be vaccinated. It is likely that care home managers would be expected to keep a record of vaccinations as part of their staff employment and occupational health records.

The intension is to permit care homes to retain a skilled, compassionate and caring workforce, keep the workforce and the people they care for safe, and make working in adult social care an attractive career choice. It is recognised that some people may choose not to be vaccinated, even if the vaccination is clinically appropriate for them. In these circumstances they will no longer be able to be deployed in a care home setting and providers will need to manage this in a way which does not destabilise the provision of safe, high quality care.

Care home managers are being asked to anticipate how they would respond to the requirement, thinking about staff who are not vaccinated. For example, would they expect to redeploy unvaccinated staff or cease employment for unvaccinated staff? These potential options should be taken into consideration.

If you have any queries around this subject, or anything else HR and employment law, give our friendly team a call on 0161 603 2156 to discuss how we could help your business flourish.

We get this question a lot at Supportis… can I ask about an applicant’s health at pre-employment stage?

Only in EXCEPTIONAL circumstances can you ask about an applicant’s health at pre-employment stage such as:

👉 to find out whether a job applicant will be able to carry out an intrinsic part of the job
👉 to find out if a job applicant can take part in any assessment to test their ability to do the job or to find out if reasonable adjustments are needed to enable a disabled job applicant to take part in any assessment
👉 to monitor the diversity of people applying for the job
👉 where another legal requirement means an employer has to ask health- or disability-related questions. For example, Merchant Shipping Regulations prohibit the employment of seafarers unless they have a valid medical fitness certificate

Our key word is NECESSITY – is it absolutely necessary to ask? 💡

Our golden rule is the information relating to health and/disability should be collected separately from other information given in the application for the job ✅

The Equality and Human Rights Commission (EHRC) has recently found that a care agency asked unlawful pre-employment health questions on a job application form.

The National AIDS Trust reported that Elite Careplus Limited (ECL) was questioning applicants’ health during their recruitment process.

The EHRC reminded employers that the Equality Act 2010 makes it unlawful for employers to ask about an applicant’s health or disability before they have been offered the job, or before including them in a pool of successful candidates to be offered a role at a later date, except in specified situations.

It has provided this information about pre-employment health questions.

The EHRC Chief Executive said ‘Disabled people often face significant barriers to employment and are twice as likely to be unemployed. No one should be put off from applying for a job out of fear of being asked detailed and unnecessary questions about their health. Employers might think they’re doing the right thing when they ask these questions, but not only are they unlawful, they risk ruling out great potential employees.”’

ECL, which has now changed its practices, previously included a medical questionnaire asking applicants if they ever had a number of health conditions. These included, but were not limited to:

  • tuberculosis, asthma, bronchitis or chest complaints
  • depression, mental illness or nervous breakdown
  • dermatitis or skin trouble.

Potential recruits were also asked if there was:

  • any current/recent medication condition or treatment which might affect attendance or performance at work
  • any illness/medical condition that prevented you from attending work, normal duties or activities for more than one week during the past year

If you have any questions about HR or Employment law, please don’t hesitate to contact our friendly team today on 0161 603 2156 today to discuss how we can assist your business in staying legally compliant.

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If you'd like to find out more about how Supportis can help your business flourish then give us a call on 0161 603 2156 or send us an email.

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