Employers in the health & social care industry are dealing with a growing number of employment law challenges. An aging workforce, rising demand for healthcare services and moral and well-being concerns are driving shortages of appropriately skilled healthcare staff – all playing against the backdrop of Brexit and uncertainties about the UK’s future legislative framework.
Brexit transition period
During the Brexit transition period, 1st February to 31st December 2020, the UK remains subject to existing EU laws and existing legislation and case law will continue to apply.
Whether the UK departs from current EU legal requirements in the future, however, will be shaped by any deal (or no deal), to be determined by 31st December 2020.
A key area of contention for the Brexit negotiation is the extent to which the UK will remain subject to European rules and case law. This includes whether UK courts and tribunals would deal with existing UK case law stemming from EU decisions. It is, for example, possible that acceptance of (at least some) EU legislation could form part of a trade deal.
Care providers will need to stay atune to any developments in this area which may result in fundamental changes to UK employment law rights and responsibilities.
Hiring & onboarding
The availability of EU workers within the UK has continued to drop since the 2016 Brexit referendum result. With the care industries being so reliant on overseas workers, it’s where the impact is being most felt. Organisations are having to change their recruitment strategies with an increased focus placed on hiring UK workers.
It also means greater reliance on agencies and short-term contracts to cover staffing shortfalls. From an onboarding perspective, this increases the administrative demands placed on HR – having to cope with greater hiring frequency and more complex forms of employment – agencies, contractors, self-employed, freelancers.
As employers of significant numbers of EU workers, care providers will need to get to grips with the Government’s immigration reforms as soon as they are announced to consider the impact on their recruitment practices.
Sleep ins & National Minimum Wage
The Court of Appeal has clarified conflicting case law and ruled that workers are not entitled to be paid the national minimum wage for time they are asleep on sleep-in shifts. However, Unison have sought leave to appeal to the Supreme Court so this may not be the final word on this matter.
The distinction is important as this could have huge implications for employers who could potentially face claims for back-pay.
Working Time Directive
Among the most contentious pieces of EU legislation affecting the NHS are the European Working Time Regulations – usually referred to as the working time directive.
The working time directive was introduced to support the health and safety of workers by limiting the time that employees in any sector can work to 48 hours each week, as well as setting minimum requirements for rest periods and annual leave.
While workers’ rights under EU law will continue during the transition period, providing continuity to employers and employees in the short term, Brexit may allow future governments to amend domestic legislation to change EU directives that have been bought into UK law. Any decision to amend the working time directive would need very careful consideration. While amendments would be welcomed by those who argue that the current limit reduces flexibility for employers and restricts training opportunities in some specialties (see, for example, Independent Working Time Regulations Taskforce 2014), it would remove an important legal protection for workers and could result in health and social care staff working longer hours, exacerbating the pressures they are under and potentially posing risks to patient safety.
Lone worker safety
Lone working in the heath and social care sector is high risk, perhaps more so than any other sector. The breadth of roles, environments, service users, and staff make predicting and controlling the risks very difficult, and adding working alone into the mix only makes it more dangerous. It is worth mentioning that a lone worker isn’t necessarily isolated. They might be in a meeting room away from their colleagues, in a patient’s house, or travelling between sites. And they might not be working alone for the majority of their day.
The risks facing lone workers in health and social care can be filtered into three categories; hazards caused by service users, their environment, and their health or risk of injury. It is vital that health and safety managers have given careful consideration to the risk assessments, and have a robust lone worker policy in place.
The reference period used to calculate holiday pay for workers with variable pay is changing on 6 April 2020 to 52 weeks, or the number of weeks of employment if a worker has been employed for less than 52 weeks.
For the purposes of holiday pay, many organisations begin their holiday year on 1 January. If that is the case, employers need to decide whether to change the way they calculate holiday pay on 6 April, or at the start of your holiday year. Organisations will need to consider the cost and practical issues which can arise, such as holiday carry over.
Many employers have been considering how to include variable pay in holiday pay. Whilst the change in the law only affects the reference period, April 2020 may be a good time to review how employers calculate holiday pay more broadly. Advisers looking at this will need to consider how changing pay moving forward affects historic claims and manage employee relations.
Although these legal reforms may seem minor at first sight, they require legal input. Many have legal and financial consequences. Preparation is key to success here and the companies that start work on these changes now will be in a good position going into 2020.
DavidsonMorris are established advisers to the health & social care sector. As employer solutions lawyers, we work with health & social care owners and providers to support with their full people requirements including immigration & employment legal advice and human resource consultancy. We understand the commercial and legal challenges facing the sector companies, and work to support our clients in meeting their people management and planning needs while reducing legal risk exposure. Contact our health & social care sector specialists today.
Last updated: 2nd January 2020