In this quarters update we look at latest legislation and case updates covering covid and menopause amongst other aspects, along with a summary for employers regarding the Graduate Visa Route.
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Legislation Updates / Case Law
Digital right-to-work checks to become permanent from April
Digital right-to-work checks are to be made permanent. The change was initially deployed as a temporary measure to aid with remote working in response to the Covid-19 pandemic, and was set to end on 5 April this year, following a number of extensions on the initial end date. However, the government has said digital checks will now continue past this date.
Once effect of this change means that from 6 April 2022, Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders will need to evidence their right to work using the Home Office online service only.
UK nationals currently do not fall within the scope of digital checks, but that the government was working on phasing out physical document checks. The UK digital identity and attributes trust framework starts rolling out in January 2022 and may well be ready in time for 6 April, which means that all employers must adhere to the digital checks for all nationalities.
Covid-19 vaccination legal requirements are to be extended to front line NHS workers and the wider social care setting (ENGLAND ONLY)
The Department of Health and Social Care has published its response to the government consultation on making COVID-19 vaccination a condition of deployment in the health and wider social care sector in England. The government has decided not to proceed with making flu vaccination a condition of deployment in any sectors.
The government has confirmed in a press statement that they will introduce new legislation for England stipulating that providers of CQC-regulated activities in the health and social care sector must only deploy individuals who have been fully vaccinated against Covid-19 to roles where they have direct, face-to-face contact with patients and service users. This will apply to front-line workers, as well as non-clinical workers not directly involved in patient care, such as receptionists, ward clerks, porters and cleaners, who have direct, face-to-face contact. The requirements will apply whether a regulated activity is delivered through agency workers, volunteers or trainees or contracted to another provider.
Subject to Parliamentary approval, the amending regulations will apply from 1 April 2022 and will be subject to a 12-week grace period to give employers and workers in the health and social care sector time to meet the new regulatory requirements.
Case Law – Key Judgements
Woman who stopped going to work over Covid concerns loses discrimination claim
A woman who stopped attending her workplace because she was scared of catching coronavirus was not discriminated against when her employer subsequently stopped paying her, a tribunal has ruled.
The woman had taken the decision not to return to work in July 2020, citing “reasonable and justifiable health and safety concerns” around Covid in the workplace. She also told the tribunal:
- she had a fear of passing Covid on to her partner, who was at high risk of getting seriously unwell from the virus;
- she made a protected disclosure in good faith and asserted her statutory employment rights about a danger to the health and safety of myself and others, which I reasonably believed to be serious and imminent.
On informing her employer of her decision not to return to work, she was informed that she would no longer be paid. She argued that her fears around the dangers of coronavirus amounted to a genuinely held philosophical belief, which she described as “a fear of catching Covid-19 and a need to protect myself and others”. Because her wages had been withheld, X argued that she had suffered a financial detriment because of this belief.
The tribunal did not dispute that X’s concerns were genuine. However, it ruled that a fear did not amount to a belief, describing it instead as a “reaction to a threat” and a “need to reduce that threat”. It also described her concerns as a widely held opinion that attending a crowded place during the height of the current pandemic would increase the risk of contracting Covid-19 and may therefore be dangerous, however a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10 of the Equality Act.
The employment appeal tribunal upholds an employee’s menopause-related disability and sex discrimination claims
In a recent Employment Appeal Tribunal case, the employee had worked for Leicester City Council as a childcare social worker, until her resignation. Following her resignation, the employee lodged an employment tribunal claim for disability and sex discrimination, harassment and victimisation with regard to her employer’s treatment of her in relation to her menopausal symptoms. The claim stated that she had suffered from the physical, mental and psychological effects of the menopause for the last two years and suffered from severe peri-menopausal symptoms for two years, including insomnia, which caused fatigue and tiredness, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. These had had a negative impact on her day-to-day life to the extent that she had struggled physically and mentally to cope. Her GP had prescribed hormone replacement therapy and she was under the care of a consultant at a specialist menopause clinic.
During her employment, her employer had referred her to occupational health, but they were unable to meet her request that she be assessed by a female doctor. The claimant stated that she felt embarrassed and uncomfortable discussing her menopause symptoms and the difficulties she was experiencing in the presence of male managers and colleagues. This included at her appeal hearing following a written warning for work-related stress absence (a warning which the claimant asserted was unfavourable treatment) where four male employees were present. She further stated that when she advised her male manager that she suffered from hot flushes in the office, he had said dismissively he also got hot in the office, which is completely different to a woman experiencing hot flushes during the menopause.
The Tribunal held that the claimant was not suffering from a disability in relation to her menopause symptoms, anxiety and depression and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation. The sex discrimination claim was struck out for having no reasonable prospects of success. The claimant appealed to the Employment Appeal Tribunal (‘EAT’).
The EAT held that, in striking out her discrimination claims without adequately analysing them, and in giving insufficient reasons for its decision, the employment tribunal was incorrect to conclude that the claimant was not disabled. At the employment tribunal hearing, the judge had noted that the claimant was able to carry out some day-to-day activities as she provided care to her husband and mother. However, the EAT doubted how much this could add to the analysis as many people, including those with disabilities, have caring responsibilities.
The Equality Act 2010 sets out when someone is considered to be disabled and protected from discrimination. It says a person is disabled if they have a physical or mental impairment and that impairment has a substantial (i.e. more than minor or trivial) and long-term adverse effect on the person’s ability to carry out normal day-to-day activities (that has lasted or is likely to last at least a year).
The EAT ruled that the tribunal was wrong to conclude that the claimant’s menopausal symptoms did not have more than a minor or trivial effect on her day-to-day activities. The claimant had given evidence before the tribunal that her symptoms included hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. It also noted that the claimant had explained to the tribunal that her symptoms led to her forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to use the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows, spending long periods in bed due to fatigue and exhaustion, and experiencing dizziness, incontinence and joint pain. These impairments had a substantial adverse effect on her ability to carry out her day-to-day activities. The EAT held that there was no explanation as to how the tribunal had concluded that this evidence, which it did not reject, did not demonstrate an effect on the claimant’s day-to-day activities that was more than minor or trivial. Similarly, the tribunal gave no reasoning for its decision to dismiss the victimisation and harassment claims. The EAT upheld her appeal.
The Graduate Visa Route: A Summary for Employers
The Home Office launched the Graduate Visa on 1 July 2021 across the UK (see https://www.gov.uk/graduate-visa), and since that date any international student who has completed a bachelor’s or master’s degree in 2021 will be eligible to stay for two additional years as part of this scheme, while PhD graduates are eligible to remain in the UK after completing their doctorate for three years.
This is therefore a significant improvement on the previous offer, as the Graduate does not need a sponsor and there is no skill level / salary threshold requirement. They can also continue to study, provided their course does not normally require sponsorship as a student. They will be able to switch into other routes, such as the skilled worker or global talent route, from within the UK at the end of their two-three year stay. They will of course need to show that they are eligible under that route.
The Graduate Visa route doesn’t count towards settlement so some individuals may prefer to switch to a visa that will count towards settlement. Dependants of a student can also apply to extend their stay under the graduate route. However, new dependants are not permitted to apply under this route.
To be eligible, applicants must hold a Tier 4 visa or other student permission and have completed an eligible course at a higher education institute with a track record of compliance to apply under this route. Eligible courses include:
- UK bachelor or UK post-graduate degree;
- Law conversion course valid in England and Wales;
- Legal practice course (LPC) or equivalent;
- Bar practice course or equivalent;
- Foundation programme in medicine or dentistry;
- Postgraduate certificate in education (PGCE) or postgraduate diploma in education (PGDE);
- Professional course requiring study at UK bachelor level or above in a profession with reserved activities regulated by UK law or a UK public authority.
Applicants will need to apply from within the UK and should have spent 12 months in the UK while studying their course. There are concessions for students who began their studies in 2020 to account for international travel disruptions caused by Covid-19. Students who began their course in autumn 2020 or January / February 2021, will need to have entered the UK by 27 September 2021 with permission as a student to be eligible for this route. Students who graduated before the launch of this route on 1 July 2021 are not eligible to apply. The Home Office has specified that a higher education institute will need to have “a track record of compliance” as a Tier 4 sponsor. This means that higher education institutes will need to show a history of “immigration compliance” and “educational oversight” to enable their graduates to apply under this route. Students can check online if their education provider has a track record of compliance.
A key advantage for employers in recruiting international graduates under this route is that they don’t need a sponsor licence for these visa holders, meaning that employers do not need to pay the immigration skills charge of up to £1,000 a year or ensure ongoing compliance with sponsor duties under this route. Employers will be able to employ international graduates with a visa for two or three years, depending on degree level. There is no obligation to offer further employment, so that employers can then make an informed decision about whether to sponsor them under a Tier 2 work visa after this time period
Training
Operational Managers are key to a Company’s success, and how they work with and manage their teams is an essential part of this.
We have recently introduced the following ‘1 to 1 HR Coaching for Managers’ modules that are delivered remotely via Microsoft Teams:
- Being an Effective Manager / Responsibilities of a Manager;
- Dealing with Misconduct (Discipline), Poor Performance (Capability) and Grievances;
- Managing Attendance / Sickness Absence;
- Managing Performance / Developing People;
- Dealing With Conflict.
Each module is focussed on the key elements involved, and takes around 1 to 1½ hours, with Managers also completing a workbook containing a number of questions and scenarios which is then analysed and feedback provided to ensure an in-depth understanding of the subject(s).
We also provide the following classroom based training courses (when social distancing rules allow) to help Managers deal with issues and people correctly to enhance your business:
- Managing Discipline & Grievance;
- Influencing Styles and Persuasive Negotiating;
- Managing Conflict;
- Managing Performance;
- Managing Attendance.
All of our courses can be tailored to suit your exact needs and delivered at your premises if required.
More details on all of the above can be found on our website.
Partner Services
We have long-term partnerships with key providers which enables us to provide other recommended services to our clients covering:
- Legal Services;
- Financial Services;
- Health Insurance and Staff Healthcare Benefits;
- Health and Safety.
Visit our website to see full information on our partners and their services.