November 29, 2021

Article

Paula Squire, Head of the Taunton Employment and HR Team at Clarke Willmott and a specialist solicitor with over 18 years’ experience assisting her clients in the care sector, shares with us her top tips for HR professionals and business owners within the industry.

Supported by my specialist team of solicitors and HR Consultancy, I recognise that most employers in the care industry have had a particularly tough time in the last 18 months dealing with the pandemic and health and safety requirements. Below is a checklist to ensure, as we approach the end of 2021, that you have not missed any key developments. Clarke Willmott is also extending an exclusive offer below to Albert Goodman clients, that you may find of interest.

  1. Covid 19 Response - Flexible Working

During the coronavirus pandemic, many employees (such as office/support staff) have worked from home, and employers are seeing a rise in flexible working requests if they seek to increase attendance at the office. Remember, any employee with over 26 weeks’ service has the right to make a statutory flexible working request. It can be more difficult to refuse a request relating to homeworking where the employee has worked from home successfully during the pandemic with no adverse impact on their quality of work or meeting demand. Employers should be mindful of claims as these can stem from the refusal of a flexible working request arising from, for example, an issue with childcare arrangements or an employee’s disability. Compensation in successful discrimination claims is uncapped. If you feel you cannot meet a request, do seek advice on the process and grounds for a refusal.

  1. Contracts of Employment & Employee Handbooks

In April 2020, the law made changes to the minimum content of your contracts of employment, including reference to new clauses which were not previously required. On this basis, unless you have updated your contracts in the last 18 months, they are not likely to be legally compliant. Also, remember, that you are now required to issue your contract by the first day of employment. Your employee policies and handbooks may also need some attention. Since Brexit, many data protection policies and candidate and employee privacy notices may be out of date as these are likely to reference document sharing within the EEA and also the EU General Data Protection Regulations. We now have a UK GDPR and with the UK no longer being a part of the EEA, means amendment may be needed. Also, do consider the inclusivity of your contract and policies. For example, consider your wellbeing policies, menopause policy and also language used to ensure gender inclusivity.

  1. Working Time, Rest Breaks and the National Minimum Wage

We assist in the buying and selling of care homes together with our corporate team. In this process, it can often be a time when working practices are scrutinised and reviewed. We check what is ‘written down’ in policies and practices and not just covered by an expectation that staff know what the practices may be. This is also the process we take in the event of a challenge by staff. Unfortunately, we see time and time again, the same legal and compliance issues which are extremely common in the care sector. Not only do you need to ensure your practices meet legal requirement but it is also documented. This can be around arrangements for employees and how they are paid for sleep ins or live-in care, with pay differences for time awake or asleep. This can also be impacted by requirements to not leave service user accommodation (even on breaks) and whether they are required to be in the same room as the service user or can they be watching Netflix in another room only keeping a listening ear. We also see issues of pay for travel time and waiting time.

We saw much confusion with the Mencap case, which was finally decided by the Supreme Court in March 2021. It concluded that, generally, employees who were asleep were not working for the purposes of the National Minimum Wage Regulations. Many care homes may have made defensive decisions ahead of the outcome and so now could be the time to look again at pay and working practices in light of the confirmation.

  1. Right to Work Checks

Temporary measures allowing an employer to conduct right to work checks remotely (such as over video calls, sending in a photo or scanned document via email) will continue to be in place until 5 April 2022. This is an extension of the previous date announced by the Government. Provided your checks are carried out in the prescribed manner or as set out in the COVID-19 adjusted checks guidance, an employer will maintain a statutory defence against the offence of employing a person who does not have the right to work in the UK and associated fine. From 6 April 2022, employers will need to revert to face-to-face and physical original document checks to inspect that they are valid.

Further Support

Clarke Willmott have kindly offered all Albert Goodman clients an opportunity to book in for a free 20 minute consultation with a specialist solicitor, if you have any issues surrounding the above, or indeed any Employment or HR issues, causing you concern. Clarke Willmott also offer a free contract and handbook review to check if your documents are legally compliant. Please do contact Paula Squire on 0345 209 1200 / paula.squire@clarkewillmott.com or Ruth Le Page on 0345 209 1760 / ruth.lepage@clarkewillmott.com for more information.

Meet the guest author

Paula Squire

Employment Solicitor - Clarke Wilmott

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