Who says I am fit to work?

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Fit Notes – the rules are changing as of 1st July 2022.

 

GPs issued around 2.9m fit notes in the three months from October to December 2021 alone (as per the latest figures from NHS Digital) – up around 500,000 from the same period in 2020.  This has been seen as an increasing burden on GPs who are struggling to cope with demand for services and the backlogs caused by the Covid-19 pandemic.

There has therefore been a push to help free up GP time and appointments.

One measure has already come in: from 6 April 2022, a fit note can be issued and received digitally.  This ties in with the increasing use of telephone or online GP appointments.

But a second more significant measure is coming into force from 1 July 2022.

Under current rules, only GPs and hospital doctors can sign fit notes.

But from 1 July 2022, new legislation takes effect that will widen the pool of health professionals who can sign off the documents: nurses, physiotherapists, occupational therapists and pharmacists.

When do you need a `fit note’?

A ‘fit note’ serves two purposes.

First, it demonstrates to the employer that the employee has a genuine sickness and is entitled to be off work.

Second, it entitles the employee to access statutory sick pay after the first three days of absence, even if  – somewhat confusingly – the requirement to obtain a fit note only applies after seven days’ consecutive absence.

Most fit notes specify that the employee is ‘not fit for work’.  This means he/she may not work for period of time stated on the fit note.

The fit note can however also state that the employee ‘may be fit for work’, usually with certain adjustments: typical examples are light duties or a phased return.

Practical Issues?

In theory, the new rules seem sensible and would help ease the burden on GPs.  However, it is quite possible that many health professionals, who are not doctors, may be reluctant to assess an individuals’ suitability for work.  This would particularly be the case if they require medication.

Indeed, the BMA has urged some caution in that not everyone in the wider range of professions who will be able to sign off fit notes should do so.

For employers, it would be good practice to update absence policies and even contracts of employment to include reference to the wider pool of health care professionals who may issue fit notes.

No panic though – the legislation overrides contract so employers and employees will not be in breach under their existing wording.  But just one to bear in mind next time you do a contract and handbook review.  If you need advice on a review, please get in touch here.

See also the Top Tips on short term absence.

Menopause and the Menstrual Cycle should matter to employers

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Why should employers care about the Menopause and Menstrual Cycle?

 

Women now make up nearly half the UK workforce. We all know – or should know – that health issues such as the menopause and the menstrual cycle can have a big impact on women’s health. And, in turn, this can have a major impact on their work.

No doubt, for all sorts of cultural and societal reasons, the impact of women’s health issues has not been considered or dealt with by most employers. However, awareness of gender issues at work has increased over recent years, probably due to factors such as the ever-increasing percentage of women in the workplace, strict obligations on equal pay reporting and even the rise of the `Me Too’ movement.

For those who are sceptical that this is something employers should be dealing with, let’s turn the argument on its head: if it affected men, we would have dealt with this a long time ago.

In the News

Indeed, the issue has been in the news a lot recently. To cite but a few examples: in 2020 the Scottish Government considered this amongst other matter in its 2021-2024 Women’s Health Plan (see pages 29-30); this summer the UK Parliament’s Women and Equalities Committee started an inquiry into: Menopause and the Workplace; October 2020 was World Menopause Month and 18 October 2020 was World Menopause Day; and for those interested there was a good discussion in a recent broadcast on Women’s Hour on Radio 4 (from 28 minutes on the recording).

It matters on a number of fronts.

Firstly, there is evidence that almost a million women in the UK have left jobs as a result of menopausal symptoms (as cited by the Women and Equalities Committee). And because menopause mainly affects those in their late 40s and early 50s, this leads to women leaving work at or near the peak of their career, with knock-on effects on workplace productivity and the gender pay/pension gap.

Secondly, even if women don’t leave their jobs, the resulting health issues can have a major impact on their productivity, effectiveness and confidence in their own ability. At best, all this could result in some women being actively or passively side-lined; at worst, there could be overt discrimination/harassment of the `gendered ageism’ variety (words involving `confusion’, dinosaur’ and `past her best’ spring to mind).

The legal point of view

From a legal point of view, we have seen the rise of employment tribunal claims concerning the menopause.  According to a recent Times article, there were five cases cited in the last nine months of 2018, compared with ten cases in the first half of 2021 which could rise to 20 cases by the end of 2021. The number of cases will only increase.

For now, discrimination cases can only be pigeon-holed into the protected characteristic of gender or age. Because of this, there is some discussion of establishing `menopause’ as a protected characteristic, to give it the same legal footing as other protected characteristics such as sex, race, disability, age, etc.

There is also the option of implementing `combined’ or `intersectional’ discrimination, namely combining two characteristics – in this case, sex and age – to make it a unique form of discrimination.  For the boffins, `combined discrimination’ was part of the Equality Act 2010 but was never implemented. You can read a good article on combined discrimination here.

From a practical point of view, employers can take steps to implement specific policies on the impact on menopause and the menstrual cycle. Formal policies can encourage employees to bring forward their concerns in the knowledge that it will be treated seriously and concerns heard in good faith.  With formal policies comes better training of managers – as well as knowledge by employees about how to approach these difficult conversations and offer solutions to the issues.

It is easy to be cynical and consider that policies become a tick box exercise. But we have to start somewhere, and with time it will become normalised – for the better.

Furlough ends and Vaccination Debate continues

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While Furlough ends, the Vaccination Debate continues

 

It sometimes seems hard to remember life without Covid: furlough, testing and vaccination are part of our daily lives.

End of Furlough – More Unemployment?

The end of September sees the end of the furlough scheme.  Since the start of the scheme, a total of 11.6 million people have been placed on furlough, at least in part.  The latest figures show a decrease from 2.4m employees on furlough on 31 May 2021, to 1.9m employees on 30 June 2021.  No doubt the figures will have significantly decreased again over the summer because employers can only reclaim 60% of salary costs.

Based on the latest submitted HR1 forms – the statutory documentation required when any employer plans 20 or more lay-offs – only 143 employers submitted forms with planned redundancies of a total of 12,687.  This amounts to an 11% fall in planned collective redundancies from July 2021, and compares with the 155,576 planned job cuts in the early days of the pandemic in July 2020.

So it seems that the economy is full steam ahead – for now at least. That the furlough scheme has provided a lifeline to many businesses and kept many people in paid employment is not in dispute.  Whether it will prove to have a net economic benefit, in the long run, can be one for the economists to argue about – including the extent of misuse/abuse of the scheme at taxpayer’s cost.

Furlough and Redundancy

One of the many issues which furlough has raised has been whether an employer should put an employee on furlough (or keep them on furlough) rather than make them redundant.

In the case of Mhindurwa v Lovingangels Care, the employment judge held that the employer did indeed have a duty to consider furlough when making someone redundant, and the absence of a reasonable explanation for not furloughing made the dismissal unfair.

The judge held that although the company had no work for the claimant, it had no way of knowing if that was going to change and ought to have considered whether she should be furloughed for a time to see if any other work became available.

It would be news to most companies that they should hold off redundancies and keep employees on furlough for a speculative period of time, just to see if “something came up”.  Indeed, it could be sensibly argued that this would be an abuse of the furlough scheme and taxpayer’s money.

However, it was only a first instance decision only so is not binding.  It is doubtful too many other judges would follow the same logic.

Compulsory Vaccination

The much more controversial point is compulsory vaccination for employees.  This is likely to continue to be an issue for some time to come.

In England, it is now compulsory for all care workers who work in care homes to be vaccinated – although this is being challenged by way of judicial review.  Quite why care home workers have been singled out and not other health professionals, has not been explained.  Interestingly, the governments in Scotland, Wales and Northern Ireland have not gone down this path.

Many employers would like to implement compulsory vaccination for their employees: in principle, it would make workplaces safer and there would be fewer absences due to the `pingdemic’.  And in theory, you can make exemptions for those who can prove they have a clinical exemption: for example, because of previous adverse reactions to vaccinations or prophylactic treatments.

But compulsory vaccination does seem a step too far for many in a free democratic society.  It would require employers having to take a view on sensitive medical information.  It would also require keeping track of paperwork proving vaccination status and treating everyone the same.

Would you then want to sack someone for failing to vaccinate?  Even if you did, could you convince an employment judge that this was a fair reason for dismissal?  Faced with these questions, most employers shy away from compulsory vaccination.  But with `vaccine passports’ becoming more common in other walks of life and with office working coming back to life, perhaps it will become more prevalent in the workplace after all?

If you have any concerns, please give me a call.

 

(c) Ben Thornber, Thornber HR Law

Who Avoids Difficult Conversations?

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Tips for successful business conversations

Who Avoids Difficult Business Conversations?

Answer: almost everyone.  We all know people at work who are loud, opinionated or even confrontational.  But that is entirely different to saying something to someone you know personally which neither you nor they would want to hear.

The usual reaction is the “ostrich” route: head in the sand and hope it goes away.  But we know that the issue festers and plays on our mind, doing no-one any good and is never a successful business conversation.

Issues range from the annoying but relatively benign: eg loud voice on the telephone; always eating communal team biscuits but never contributing, or asking you something by email when they sit right next to you.   All too often we allow these habits to continue to annoy us rather than speak directly to the colleague asking them to stop.

And in this e-communication age, many of us even avoid talking to clients or prospects because it is easier to fire off an email thinking that we have done “our bit”.  Here is a great short blog by Mike Ames about the importance of picking up the telephone and actually talking to prospects to get results: mikeamesonline.

More avoidance strategies

A more serious yet common avoidance strategy comes to not telling direct reports where they are falling short in the job.  All too often, clients complain to me about team members who are pretty useless, but when I ask them when they last had a meeting about their performance there is a blank look.  Even worse is where they have gone to the trouble of giving appraisals, but they only contain glowing comments.  We have all seen it happen.

And at the extreme end of the spectrum, there is a downward spiral of poor relationships but with no-one getting to the nub of the issue in a constructive way.  This can lead to an unpleasant discussion involving the words “exit settlement” and “protected conversation”, often accompanied by an expensive cheque.

In my view, the main reason for this behaviour is because people do not like to say something negative and personal face-to-face.  It is hard, or at least we think it is.  The trick is to turn the conversation into a positive, engaging, discussion, for the recipient.

How it can work

Sounds too good to be true?  Well, it may not be as hard as you think.  Take a look at this excellent video by Jon Trevor of Let’s Talk: letstalk/teamwork-and-communication.  Jon explains a five-step process to approach any difficult conversation which encourages the recipient to (a) feel respected and (b) work out the solution to the problem him/herself.

Try it.  Have that face-to-face meeting that you have been avoiding.  Use your body language and voice to show control, respect and positive engagement.  You may find you start dealing with issues head-on – both at work and at home.

Why not contact us if you think some training would be helpful for your managers and teams to have those successful business conversations

(c) Ben Thornber, Thornber HR Law

 

Gender Recognition

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Gender Recognition

 

When do you defend the right to offend?

Most people accept that we all have a right to have an opinion with which others disagree.

In recent times we have been familiar with issues concerning images or texts which people from one religion or another find offensive.

But with `Woke’ matters coming to the fore, this issue is straying into more secular areas of life, thus blurring the edges of accepted offending.  It was only a matter of time before the courts were asked to adjudicate.

Fundamental Rights & Beliefs when it comes to Gender Recognition

In Forstater v CGD Europe, Ms Forstater worked for CGD. In 2018, she became engaged in the debate about proposed reforms to the Gender Recognition Act. Complaints were raised with CGD that some of her tweets were ‘transphobic’.  Her contract was not renewed, and she complained of discrimination on grounds of belief.

The belief held by Ms Forstater is that there are only two biological sexes in human beings, and that it is impossible for a human being literally to change sex.

The employment tribunal judge found that because Ms Forstater’s belief necessarily involved “misgendering” it was incompatible with human dignity and the fundamental rights of others.

But the Employment Appeal Tribunal (EAT) disagreed. It found that Ms Forstater’s belief is widely shared, and consistent with the law. The tribunal was wrong to assume that her belief meant she would always ‘misgender’ trans persons, irrespective of circumstances; her position was more nuanced than that.

The EAT went on to hold:

It was only those beliefs…. akin to pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted.”

To offend or not to offend

In other words, we are entitled to the right to hold and express beliefs, other than extreme violence and hatred, even when those beliefs may offend others.  Amen to that.

But…..the debate moves on to what amounts to the `gravest forms’ of hatred which are `not worthy of respect in a democratic society’?

For example, many people will consider any form of racist comment, no matter the context, as amounting to the gravest form of hatred.  Is it not conceivable that one day the opinion expressed by Ms Forstater may indeed be seen in the same light?

There is also the debate about what amounts to the `manifestation’ of the belief?

To add context, the courts have already intervened when the practice of religious beliefs, as opposed to the holding of those beliefs, have been found to discriminate against others: for example, where bed & breakfast owners refused to allow same-sex couples to stay in their accommodation.

Within the context of the trans and gender debate, some would argue that repeatedly voicing an opinion creates a hostile and intimidating environment: is that not a manifestation of that belief, in and of itself?

Not yet, on current law, but `times they are a-changin’… especially with gender recognition issues

Affected?  Speak to us for clarity and guidance – it’s a complex area

 

(c) Ben Thornber, Thornber HR Law

Contact:

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info@thornberhrlaw.co.uk

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Ben Thornber is a solicitor with a current practising certificate.  He meets the requirements of a being `qualified lawyer’ and `relevant adviser’ for the purposes of advising on settlement agreements.  Any legal and HR advice Ben Thornber provides through Thornber HR Law is covered by a contract of insurance.  However, Thornber Employment Law Ltd (t/a Thornber HR Law) is not a law firm and is not regulated by the Law Society of England and Wales or the Law Society of Scotland

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