Employment Law General Update – January 2023
As we welcome in the fresh new year, there is a need to focus on helping employees with health issues as the NHS struggles more than ever. We highlight three areas where employers can make a real difference. Other challenges this year come from union strikes, and the government looks to balance the rights of strikers with continuing to provide minimum levels of service in specified public services in a new bill before the Commons, along with an update on the Neonatal Care Bill which covers parental leave. With people working more flexibly consultations have started on proposals to pro-rata holiday entitlement for part-year and irregular hours workers.
- Employee Health: Three wellbeing challenges employers will need to tackle in 2023
- Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
- Parental Leave: House of Commons publishes update on Neonatal Care Bill
- Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
Employee Health: Three wellbeing challenges employers will need to tackle in 2023
Website, People Management, published an article on 20 January 2023 by Imogen Cardwell (Clinical Operations Director at PAM OH) promoting a proactive approach from employers to address health challenges facing employees including soaring cancer rates, increasing work-related illness and NHS delays. You can read the full article [here] but below is a summarised version.
She reports that with an NHS backlog of more than 7.2 million, it will impact more than a million employees, with 15 per cent of employees affected being forced to go on long-term sick leave, and 40 per cent of cancer patients are having to wait more than the 62-day target for life-saving cancer treatment . At the same time, two-fifths of employees believe work has made them sick, primarily due to work-related stress and musculoskeletal (MSK) issues. All of which means the NHS backlog, rising cancer cases and increasing work-related illness are the three major wellbeing challenges employers will need to address in 2023.
Challenge 1: Supporting employees with cancer
Employers will need to do more to support terminally ill employees to stay in work, so long as it is safe to do so. This is both a legal duty, under the Equality Act 2010, but also a moral duty. Integral to this is supporting employees by making the reasonable adjustments needed to allow them to remain in work, such as allowing flexible working or changing working hours for a period to account for someone’s needs.
Managers should be encouraged to talk to employees about what they think would help them and an occupational health clinician can also advise on appropriate adjustments that would work for the individual and business, both now and as the employee goes through important milestones and treatments.
Challenge 2: Ongoing NHS delays
Before the pandemic, employees would typically get signed off work by their GP until after they had been treated and had some post-surgery rehabilitation, which might have been around 6 weeks. With wait times of up to a year, this might not be acceptable going forward. Be aware of the risk of financial hardship, and long-term absence which has been shown to lead to lack of confidence, isolation and an increased risk of future worklessness.
Again, reasonable adjustments to help keep people in work will be critical going forward. Workplace wellbeing initiatives or occupational health advisors might also be able to support the individual with linked conditions, for example, losing weight to reduce joint pain and need for an operation.
Challenge 3: Soaring work-related illness
Days lost to work-related ill health cost billions per year, primarily work-related stress, depression or anxiety and MSK issues. What drives these issues? Employers should review their health data, including referrals to occupational health and health screening insights. As well as conduct ‘employee listening’ with surveys designed to uncover the root causes of work-related stress. This can often be addressed with workshops and manager training based on the HSE’s Management Standards for reducing stress, which look at everything from workload to working relationships.
In the case of soaring MSK issues, workplace risk assessments can be used to identify where employees are setting themselves up for future injury. While body mapping workshops, where employees place stickers on body maps to reveal where they have injuries or niggles, can also be used. These encourage employees to share tips and advice with one another on how they’re using the same equipment, or doing the same job, in a way that prevents injury. As it’s often the smallest behavioural changes that make the biggest difference.
A free guide to Health at Work is available from PAM Wellbeing here.
Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
The House of Commons (HoC) Library has published a research briefing on the Strikes (Minimum Service Levels) Bill, which was introduced to the House of Commons and given its first reading on 10 January 2023. The Bill enables regulations to be made by the Secretary of State at the Department for Business, Energy & Industrial Strategy (after consultation) setting minimum levels of service in specified public services so that those services do not completely shut down when there are strikes. For these purposes a strike does not include an overtime ban or a call-out ban. The Bill would grant the Secretary of State the power to set ‘minimum service regulations’ that could set minimum service levels for workers during strikes in the following sectors:
• health services
• fire and rescue services
• education services
• transport services
• decommissioning of nuclear installations and management of radioactive waste and spent fuel
• border security.
The Bill grants employers the power to give a ‘work notice’ to a trade union about any strike that affects a service subject to the Bill. The notice would have to specify which workers the employer to continue work in order to ensure service levels required by the minimum service regulations. Where a union fails to ‘take reasonable steps’ to ensure compliance with the work notice it loses protection from liability. Furthermore, the Bill removes automatic protection from unfair dismissal for any employee who strikes contrary to a valid work notice.
The second reading of the Bill was due to take place on 16 January 2023.
Parental Leave: House of Commons publishes update on Neonatal Care Bill
The House of Commons (HoC) has published a briefing paper on the Neonatal Care (Leave and Pay) Bill 2022–23, which was introduced by Stuart C McDonald MP as a Private Member’s Bill on 15 June 2022.
The Bill would introduce neonatal care leave and statutory neonatal care pay. As these are both new rights, they require the Minister to pass regulations to bring them into force. Parents whose children spend at least one week in neonatal care would qualify for the day one right to neonatal leave. The duration of the leave and when it must be taken would be set by regulations. It would be a minimum of one week and the period in which it could be availed of would last a minimum of 67 weeks starting from the date of the child’s birth. Employees with at least 26 weeks continuous service can avail of neonatal care pay during periods of neonatal leave. While limit and duration of pay would be set by regulations the minimum limit that could be claimed would be a minimum of 12 weeks.
There have been calls since 2014 for such a bill to be introduced. Following a consultation, the Government committed to introduce neonatal care and pay in March 2020. This was reiterated by the then Labour Markets Minister Paul Scully when he was responding to a parliamentary question on 25 May 2022. All MP’s who spoke during the second reading of the Bill were in favour of it passing. Similarly, all contributions at committee stage were in favour of the Bill and all amendments were accepted. However, concerns over the length of time the government were taking to implement the Bill were also raised.
Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
The Department for Business, Energy & Industrial Strategy (BEIS) is conducting a consultation on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work. The consultation follows the recent Supreme Court judgment in Harpur Trust v Brazel  IRLR 67.
As part of the consultation, BEIS proposes to introduce a holiday entitlement reference period for part-year and irregular hours workers. BEIS wants to ensure that holiday pay and entitlement is directly proportionate to the time part-year and irregular hours staff are working. The consultation also aims to understand how entitlement is currently calculated for agency workers and how the consultation proposal could be implemented.
The consultation may be of interest and impact employers, workers, business representative groups, unions, and those representing the interests of groups in the labour market.
Responses to the consultation can be completed online here. Responses can also be emailed to: email@example.com. The consultation closes on 9 March 2023.
Further information regarding the Calculating holiday entitlement for part-year and irregular hours workers Consultation can be accessed here. The Proposal to simplify Holiday Pay and Entitlement Consultation Impact Assessment can be accessed here.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org