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.

The Supreme Court has this morning dismissed appeals to pay an hourly rate for ‘sleep-in’ shifts; this will no doubt be a relief for care companies and investors alike, but a setback for carers and healthcare staff.

The ruling in the Mencap v Tomlinson-Blake case means the time a worker is required to sleep on site does not count towards minimum wage calculations.

“This ruling will be disappointing for any care worker who believes they should be paid minimum wage for the entirety of the time spent on ‘sleep-in’ shifts,” employment partner at law firm Shakespeare Martineau, Matt McDonald, said.

Implications for employers

This decision will no doubt come as a huge relief to employers in the care sector, as they could have been forced to pay substantial back payments (an estimated £400 million) if appeals were allowed by the Supreme Court.

Employers should however note the Supreme Court stating that not all workers who are allowed to take naps on shift are classed as a sleep-in worker and dependant on the facts of the case, they may be working, as opposed merely to being available for work, even if their work is only intermittent.

This judgment is the final word on the sleep-in exception in these proceedings.

However, many interested parties, including Mencap, believe that the NMW legislation covering sleep-in payments is outdated, unfair and they are calling on the Government for reform.

For advice around this topic, please give us a call on 0161 603 2156 for a free, no-obligation chat around how we can protect your business.

The care sector has experienced many challenges over the past few years. However, none have been more controversial than the recent changes regarding sleep-ins. But what is a sleep-in shift and why has there been so much controversy?

With the law and tribunals yo-yoing on the topic, how are employers able to keep up and remain compliant?

Overview

A ‘sleep-in’ shift is where an employee is allowed to sleep at their place of work; the employee is on call at work but is allowed to sleep if they are not needed for work tasks.

There have been ongoing legal disputes between employers and employees as to how much pay an employee should receive for such a shift (especially considering that the employee is allowed to sleep).  These disputes have resulted in tribunal claims.

The law

Within the National Minimum Wage Act (NMW) there is an opt-out for those employees who are sleeping at work. The law and the Low Pay Commissions Agency advised that when employees are asleep, this time is not considered to be ‘timed-work’ and so the employer does not have to pay NMW.

However, this has been brought into question and many employees have argued that being asleep at work is not true rest as they are away from their home. They argue that the NMW exemption does not apply and they should be allowed to get NMW for the time they are at work (asleep or otherwise).

Previous cases to be aware of

The Whittlestone case is cited as one of the key cases for sleep-ins pre-2018. Mrs. Whittlestone took her employer to a tribunal claiming she had been underpaid NMW arguing that she should have been paid NMW while asleep at work.

In this case the Employment Tribunal concluded that it did not matter whether Mrs Whittlestone was asleep or actually performing duties during her sleep-in, ruling that Mrs Whittlestone should have been paid NMW.

To come to this conclusion the Employment Tribunal considered the employee’s obligation to be at work. Specific consideration was given to the fact that Mrs. Whittlestone would have been disciplined should she have left the work premises. Given the constraints on the employee’s freedom, Mrs. Whittlestone was entitled to be paid the NMW for the duration of her shift, even if she was asleep.

Following the changes in the way the law was interpreted, HMRC advised that all care providers should back pay up to 6 years underpayment. This would have cost the industry over £400 million.

However, the principal of this case has since been challenged.

Most recent ruling

The next important case in this area is the Mencap case. Using the principles of the Whittlestone case, Mencap employees, with the help of Unison, took Mencap to a tribunal for underpayment of NMW during sleep-ins. Mencap lost this case and it was found that Mencap had underpaid NMW to its employees. Any employee working a sleep-in for Mencap should have been paid NMW.

This ruling meant that Mencap was liable for huge back payments, potentially bankrupting the business.

Having initially lost at tribunal, Mencap then appealed against the ruling in 2018 at the Court of Appeal. After a landmark hearing, Mencap won.
The judge concluded that while employees are asleep they are only considered to be available for work rather than actively engaged in work. Therefore, the employees are exempt from NMW and Mencap were not liable to make any back payments.

Future changes

In spite of this most recent ruling, this issue is far from resolved. Unison have lodged an appeal at the Supreme Court. This escalation to the Supreme Court is to challenge the Court of Appeal’s decision (who sit below the Supreme Court in the hierarchy). As the case has not yet been accepted we are waiting to see what happens and will keep you updated.

Where does this leave employers?

While Mencap have contested the original tribunal decision they are very vocal regarding protecting carers’ working conditions. They have published a statement on their website explaining that while they are not in a financial position to make large back payments, employees who work a sleep-in will be paid NMW rather than an ‘on call’ rate moving forward.

At present employers in this sector are not legally obliged to pay NMW while an employee is asleep (should the employee be woken and actively engaged in work this is when NMW would be due).

However, given that this is an area that could change it would be wise to pay NMW for sleep-ins, as Mencap are now doing, or budget for back pay should the law change again.

If you need any advice on this or any care related HR or Employment Law issues please call one of our Employment Law Consultants on 0161 603 2156 to arrange a free initial consultation.