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Friday, 10 September 2021 14:40

Three to Watch

You don’t need us to tell you that the view of the Employment Law landscape has shifted as a result of the Covid pandemic and Brexit. We must therefore maintain a watchful on eye on how any new issues that are presented are dealt with by Tribunals and the Courts.


This week we’re looking at three such issues, and whilst it can sometimes take years to reach a final outcome, we can use our experience to give an indication as to which way those decisions might fall and the potential impact for employers.


Long-Covid as a disability: Because it is such a new disease, it’s impossible to tell what the long-term effects of Covid might be. Since shortly after the outset, there have been plenty of reports of individuals suffering from longer term effects, apparently bought on by a Covid infection and commonly referred to as Long-Covid. There is a long list of these extended symptoms and reports are well documented. They include a loss of sense of taste and smell, joint pain, dizziness and nausea, and more seriously, heart palpitations, shortness of breath, memory and concentration problems and depression.

A disability is classed as “a physical or mental impairment that has a substantial and long-term negative effect on a person’s ability to do normal everyday activities”. A rule of thumb for long-term in this instance is twelve months and whilst most people recover within twelve weeks, there are reports of symptoms of Long-Covid lasting for much longer periods of time.

We’re yet to hear of an individual claiming that they have been treated unfairly and discriminated against because they are suffering from Long-Covid, but we think it’s only a matter of time. The TUC has, after all, called upon the Government to list Long Covid as a disability.

Most symptoms are not outwardly obvious and can be attributed to other illnesses so a problem for health professionals, and consequently employers, will be diagnosis. However, we don’t want to be the first to end up in court so until more is understood about the disease, we should take cases of Long-Covid seriously and engage with an Occupational Health specialist where appropriate. They will be able to translate any symptoms into a work context and make recommendations for reasonable adjustments the employer can make.

Mandatory Vaccinations: Currently, this is only an issue that is affecting people who work in care homes but there will likely be occasions where it spills over to some related industries so it’s worth taking note.

The Government is implementing legislation that will make the registered persons of all Care Quality Commission (CQC) registered care homes, responsible for ensuring that, from November 11th, no-one enters their indoor premises who has not been fully vaccinated. In other words, barring a very few exceptions, anyone who works in a care home must be fully vaccinated. This will, of course, include carers, but also anyone else who works on site including kitchen, cleaning and admin staff.

Moreover, because of the date that the legislation is due to be enforced, the latest day for people working in care homes to get their first jab is Thursday 16th September.

This isn’t quite “no jab, no job” but it’s verging on it. Certainly, anyone who works in a care home and isn’t vaccinated is going to struggle to justify why not unless they’re covered under a recognised exemption. Whether or not it’s possible to dismiss a care home employee because they aren’t vaccinated is still up for debate and some less ambiguous guidance from Government would be very useful here.

Currently, someone who has to visit a care home on an emergency basis, such as an emergency plumber, doesn’t have to be fully vaccinated. If on the other hand, you are contracted to a care home, to deliver food or medicines for example, you may find your contract up for review if you are unable send someone who can prove that they are vaccinated to make the deliveries.

Recruiting from Abroad: Not a direct result of Covid but certainly affected by the exodus of foreign workers during the pandemic and then compounded by the new Brexit rules, the restrictions on recruiting foreign workers are having a real impact on businesses. The HGV driver shortage has been the main story in the news but other industries, and hospitality in particular, are being affected by an inability to recruit workers. For most, recruiting from abroad is no longer an option.

Since Brexit on 1st Jan, companies need to follow UK government procedure on recruiting from abroad unless it is for Irish citizens or EU nationals that have Settled or Pre-settled status in the UK.
The process is not easy and full details can be found at: https://www.gov.uk/guidance/recruiting-people-from-outside-the-uk To stand any chance, the roles that you are recruiting for will need to fall within a government defined skill shortage area and at the time of writing, hospitality workers aren’t on the list. Indeed, the transport industry is lobbying Government to have HGV drivers added.

A top level summary of the steps organisations need to take are:

  • The recruiting organisation must apply for a granted a sponsor licence
  • Recruits must speak English at the required level
  • The job offer is at the required skill level of RQF3 or above (equivalent to A level)
  • Recruits will be paid at least £25,600 or the ‘going rate’ for the job offer, whichever is higher
  • There terms of the points-based system, allowing trade between qualifications and salary etc. are met

Worst case outcome from this issue is that we will see businesses close because they can’t fill vacancies. But what we are also likely to see is pay and benefits packages in some industries improving dramatically in order to attract workers. Working environment and company culture are going to play a huge part in this and we are likely to see more worker-led terms of employment; as we discussed in the blog a couple of weeks ago. Employers will need to think creatively and higher wage costs will inevitably be reflected in higher prices.

You can rely on HR Champions to be on top of current news and thinking so keep an eye on our website for news and updates that affect businesses and employers. If you need direct support or training we’re here to help. Call us on 01452 331331 or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Read 36 times Last modified on Friday, 10 September 2021 14:41

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