| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Covid Vaccinations for Care Home Staff: Your Questions Answered
Our Ask the Experts Email Helpdesk has been busy answering questions from those of you who operate care homes about the new rules on mandatory Covid vaccination for your staff. If a worker refuses to get vaccinated, you should in the first instance offer them advice and information but, if necessary, you will be entitled to dismiss them. With care home staff required to be double jabbed by 11 November, here are some of the key points it’s important to be aware of.
What are the New Rules?
From 11 November 2021, workers are only permitted to enter your premises if they are double jabbed or medically exempt from vaccination. Individuals must show you their NHS Covid Pass (usually via a smartphone app), which is evidence that they are either fully vaccinated or exempt from the requirements. You must then make a record to show that you have seen this evidence and when you saw it (ensuring you comply with data protection legislation).
Once this record is in place, staff don’t have to keep showing you their Covid Pass whenever they enter the premises – the record will be enough to show it’s legal for them to enter.
What Reason for Dismissal Should We Use if an Employee Refuses to Get Vaccinated?
When you dismiss an employee who has worked for you continuously for 2 or more years, the dismissal will only be fair if you:
- Have one of the 5 fair reasons for dismissal set out in law.
- Follow a fair dismissal procedure.
Government guidance says you can either use ‘some other substantial reason’ (SOSR) or statutory illegality (which means you’ll be breaking the law if employment continues) as your fair reason for dismissal.
The Acas Code of Practice on Disciplinary and Grievance Procedures doesn’t apply to dismissals for SOSR or statutory illegality. You therefore don’t need to follow the usual ‘first written warning, second written warning, termination’ process. However, for the procedure to be fair, you should:
- Consult the employee and inform them that they are at risk of dismissal if they do not demonstrate they are vaccinated or medically exempt.
- Hold a meeting at which you give them an opportunity to explain why they should not be dismissed.
- Give them the right to be accompanied at the meeting by a trade union representative or colleague.
- Explore alternatives to dismissal, such as redeployment to a role where vaccination is not required (e.g. at your head office) or unpaid leave if the employee intends to get fully vaccinated but will miss the 11 November deadline.
- Provide a written decision and offer a right of appeal against dismissal.
You can download a Unvaccinated Care Home Worker Dismissal Letter from your Online Resource Centre.
What Evidence Do We Need to Accept that a Worker is Medically Exempt From Vaccination?
For now, you should accept a self-certification form completed by the worker stating that they are medically exempt. This form remains valid as evidence until 23 December 2021. However, these self-certified exemptions are now being reviewed by doctors and clinicians. If the worker’s exemption is confirmed (or it’s not but they get double jabbed), they will obtain an NHS Covid Pass. If they can’t show you a Covid Pass, you should not let them enter your premises from 24 December 2021.
Pregnant women who don’t wish to get vaccinated don’t need to follow this process. Instead, they can use their MAT B1 certification as evidence that they are medically exempt. The exemption will expire 16 weeks after they give birth.
Do We Need to Issue Vaccinated Staff with Updated Terms and Conditions?
It’s not essential to update your employees’ terms and conditions to reflect the requirement to be vaccinated. Given the change in the law, you’ll be able to dismiss anyone who is unvaccinated even if their contract is silent on this point.
There may be some advantages to making vaccination a contractual requirement. This might make it easier to insist an employee gets a booster jab. Also, if you want to make vaccination a contractual requirement for new recruits (though, again, it’s not essential to do this), it would ensure your contracts are consistent. If you do wish to update existing employees’ contracts, the easiest approach would be to issue them with a letter setting out the change and ask them to sign and return a consent form confirming that that agree to the variation.
On the downside, there’s the administrative burden of checking all your employees have signed their consent form. Also, it’s possible that despite being vaccinated, some employees might refuse to agree to a change in their terms and conditions. In this case, you’d have to decide whether to dismiss them and offer to re-engage them on the new terms, which could result in a successful unfair dismissal claim. If more than 20 people objected to the change, putting them at risk of dismissal, you’d have to commence a long-winded collective consultation exercise. So, you may feel these issues outweigh any benefits from issuing an update to employees’ contracts.
| HEALTH & SAFETY
Paul Smith, Joint Editor-in-Chief, Risk Assessment & Compliance, Editorial Board Member, Health & Safety Adviser |
7 Proven Tips from a Lifetime in Health and Safety
This week, we’re sad to say goodbye to Paul Smith who has edited Agora’s health and safety publications since 2013. We know from your feedback how much you appreciate his practical approach, so we’ve invited him to set out here the 7 most important health and safety lessons he takes from his 40+ years’ experience. Here’s wishing him a long and happy retirement!
- Safety First: There’s No Such Thing: If you’re a profit-making company, can you really say that safety is the most important thing you do? A better approach is to insist health and safety take a prominent place in every aspect of your business, but build health and safety in, don’t bolt them on.
- Be Action-based: The biggest flaw in most policies, procedures and risk assessments is not how they’re worded but how they’re implemented. So, give as much time to planning implementation as you do to getting the wording right. A quick win is to involve, right from the start, the people who will be affected by any change because people support what they have helped create.
- Check You’re as Good as You Think: Beware of the situation where your paperwork promises measures that are not actually taken in practice: your own documents can be used against you if someone gets hurt. How best to avoid this pitfall? Take your policies, procedures and assessments out into the workplace and check they’re working in practice. You may have a nasty surprise, but it’s better to find out now than wait until the accident happens.
- When Investigating, Focus on Prevention Not Blame: Those who look into complaints, accidents and near-misses often make life harder for themselves, and fail to achieve the result they want, because they fall into the trap of focusing on individual fault. Instead, as human factors expert Prof Sidney Dekker puts it, ‘ask what was responsible, not who was responsible’. This way you’ll get better co-operation from everyone you talk to, and identify the real root causes of what’s gone wrong. To stop it happening again, you’ve got to know why it happened this time.
- Better Housekeeping Is a Guaranteed Win: A clean and tidy workplace is a no-brainer. It tackles the main cause of one in three accidents (slips, trips and falls), it makes work a nicer place to be, and it reduces the fire risk because clear desks, aisles and gangways make it harder for fire to spread. It will also impress customers and other visitors, and it’s quick and cheap to do!
- Take Health as Seriously as Safety: Although health has rightly received much more attention in the last 10 years, it’s all too easy to do the ‘safety’ and forget the ‘health’ (especially mental health). Health hazards, such as dust, noise and stress, are harder to identify and manage, but the harms, and the costs they generate, far outweigh those due to workplace accidents. It’s called the Health and Safety at Work Act for a reason!
- What You Do Matters More than What You Say: If you’re a senior manager, it’s easy to make bold statements about health and safety, but everyone else judges leadership by what they see happening, not by what they hear said. Make sure you deliver with deeds as well as words, and always lead by personal example in matters such as PPE and sticking to safety rules. As Gandhi said ‘Be the change you want to see.’
We’re very pleased to welcome Michael Ellerby as Paul’s successor. He’s practised as a safety professional for over 30 years, and as well as being a Chartered Safety Practitioner, he’s a Chartered Chemist and Member of the Institute of Fire Safety Managers. We wish him every success as Ask the Experts Update Editor.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
New Rates and Allowances Confirmed in the Budget
The Chancellor, Rishi Sunak, presented his Autumn Budget this Wednesday, confirming some of the rates and allowances of interest to employers that will apply for the 2022/23 tax year.
Income Tax Rates and Thresholds
As previously announced, the personal allowance remains at £12,570 for 2022/23. As a result, the PAYE threshold remains at £242 per week, £1,048 per month and £12,570 a year where an employee is entitled to the standard personal allowance. The emergency tax codes remain at 1257L W1, 1257L M1 and 1257L X.
The basic rate of tax remains at 20%, the higher rate at 40% and the additional rate at 45%.
The basic rate band is also unchanged at £37,700. Where an employee is in receipt of the standard personal allowance, higher rate tax is payable where income exceeds £50,270. Tax is payable at the additional rate on taxable income in excess of £150,000.
The rates and thresholds applying to the non-savings, non-dividend income of Scottish taxpayers will be announced in the Scottish Budget.
National Insurance
As announced at the time of the March 2021 Budget, the upper earnings limit applying for primary Class 1 purposes is frozen at its 2021/22 level of £967 per week (£4,189 per month, £50,270 per year).
The upper secondary thresholds that are aligned with the upper earnings limit, namely those for employees under 21, apprentices under the age of 25 and armed forces veterans in the first year of their first civilian employment since leaving the armed forces, are also frozen at this level.
A new upper secondary threshold for new Freeport employees will apply from 6 April 2022, set at £481 per week.
The lower earnings limit is set at £123 per week, the primary threshold is set at £190 per week and the secondary threshold is set at £175 per week.
As previously announced, pending the introduction of the Health and Social Care Levy from 6 April 2022, the rates of Class 1, Class 1A and Class 1B contributions are increased by 1.25% for 2022/23 only. Consequently, the main primary Class 1 rate is 13.25% and the additional primary Class 1 rate is 3.25%, while the rate of secondary Class 1 contributions, Class 1A contributions and Class 1B contributions is 15.05%.
The rates are due to revert to their 2021/22 levels from 6 April 2023 when the Health and Social Care Levy comes into effect.
The National Insurance Employment Allowance also remains at £4,000 for 2022/23.
Company Cars and Vans
The company car tax rates applying for 2022/23 have already been announced. These will also apply for 2023/24 and 2024/25.
The multiplier for the purposes of the fuel benefit charge is set at £35,300 for 2022/23.
As far as company vans are concerned, the flat rate charge for a taxable company van is set at £3,600 for 2022/23, while the van fuel charge is set at £688.