Mills & Reeve: Health and Care Update

Update: Government acts to disapply public sector exit payments regulations

The Treasury has issued a Direction which disapplies the Regulations which introduced a cap on public sector exit payments in November last year (see our earlier blog here). That means that the cap ceased to apply from 12 February, pending revocation of the Regulations. It also means that the exit payments of employees with termination dates between 4 November 2020 and 12 February 2021 should not have been capped.

Accompanying Guidance suggests that employees who have been affected by the cap should contact their former employers to ask them to pay them the amount they would have received had the cap not been in place. Employers are “encouraged” to pay employees “the additional sums that [they] would have paid but for the cap”.

The Guidance doesn’t address the practical difficulties of unwinding the arrangements made over the past three months where the cap was applied, or what happens if it is not possible to work out the addition sums that would have been paid but for the cap.

It does however re-iterate that it is still “vital that exit payments deliver value for the taxpayer and employers should always consider whether exit payments are fair and proportionate.” In the NHS, removal of the cap does not avoid the need to obtain Treasury consent for non-contractual payments.

The Guidance also states that the Treasury will be bringing forward new proposals “at pace” to tackle “unjustified” exit payments. The decision to scrap the current Regulations was made against the background of legal proceedings brought by Unison and others which challenged their legal validity. They were due to have been heard by the High Court next month.

The Direction disapplying the Regulations does not apply to exit payments made by a devolved Welsh authority.

Jog Hundle

Key features of the new post-Brexit immigration system

The expiry of the Brexit transition period on 31 December 2020 saw the end of EU freedom of movement. From 1 January 2021 the UK’s new points based immigration system will apply to EU as well as non-EU nationals, marking the most significant change to our immigration system for several decades.

Alex Russell,  who heads up Mills & Reeve's immigration team, has prepared a guidance note considering the key features of the new immigration system and the actions that employers in the health and social care sectors will need to take.  The note also looks at some recent unexpected changes to the sponsor guidance concerning the documents that sponsors are required to keep, despite the fact that the resident labour market test has been abolished.

Supreme Court’s ruling on sleep-in shifts expected ‘soon’

But which way will the Supreme Court go?

Amongst the many operational issues currently occupying the head space of care home operators, owners or an investor seeking to acquire a provider is the much anticipated Supreme Court decision in Royal Mencap Society v Tomlinson-Blake concerning the issue of sleep-ins and working time. The decision is expected soon but there is nothing on the Supreme Court’s website to provide us with further clarity.

Back in July 2018 the Court of Appeal ruled that sleep-in workers are only entitled to the national minimum wage (NMW) while they are “awake for the purposes of working”. However this ruling was appealed to the Supreme Court in February this year, creating further uncertainty for the sector.

Ultimately social care providers will need to brace themselves for action: whether the decision is favourable to Mencap or not. Social care providers operating sleep-ins may wish to re-visit their workers’ terms and conditions and take further legal advice on their NMW compliance, as appropriate. Providers will need to consider what their potential exposure could be if the decision goes against Mencap and what plans will need to be put in place to ensure NMW compliance moving forward.            

As an immediate step, care providers may wish to consider their workforce communication strategy, pending the Supreme Court’s decision, given staff are likely to have a number of questions about their organisation’s future approach to sleep-ins depending on which way the decision goes.

Do get in touch with our employment team if you would like to discuss your organisation’s plans.

Stuart Craig and Joanna Burrows

Hospital disciplinary procedures must be reviewed by March 2021

NHS England’s People Officer, Prerana Issar has signalled a step change in hospital disciplinary procedures urging NHS organisations to review their polices in line with the new national guidance and refresh them annually, if required. This follows the tragic death of senior nurse Amin Abdullah after his dismissal by Imperial College Healthcare NHS Trust in late 2015.

The inquiry into Mr Abdullah’s case and the subsequent recommendations for all NHS Trusts from NHS Improvement highlighted the need for health and care organisations to ensure that their investigations and disciplinary procedures are in line with best practice.

According to a letter seen by the Health Service Journal (pay walled), Issar has written to NHS Trust leaders highlighting the new disciplinary processes implemented by Imperial College Healthcare NHS Trust, the Trust which employed Mr Abdullah, and urging Trusts to ‘honestly reflect’ on their disciplinary procedures.

Trusts are encouraged “to ensure that our people practices are inclusive, compassionate and person-centred, with an overriding objective as to the safety and wellbeing of our people..”.

Issar also makes a clarion call to trust leaders to “commit to tangible and timely action to review on a yearly basis and by the end of this financial year, all disciplinary procedures against the recommendations and that these are formally discussed or minuted at a public board or equivalent.”

She suggests that policies are made available on Trust’s websites by the end of the financial year.

Imperial’s new disciplinary policy and procedure were developed following the findings of the independent investigation by Verita, which were accepted in full by the Trust. Imperial has implemented a range of measures to ensure cases are thoroughly assessed before any investigation or formal procedures are followed, and have subsequently introduced a team of trained investigators, trained managers who hear cases at formal hearings and expanded their pastoral support for employees.

Imperial report that following the introduction of these measures, they have reduced formal disciplinary investigations and hearings by a third. They have also reduced the likelihood of staff from a Black, Asian and Minority Ethnic background being subject to a disciplinary hearing to a level where their BAME staff are now no more likely to be subject to disciplinary action than their white colleagues.

Where next

HR teams and trust boards need to review their organisations’ current procedures and processes ensuring that they comply with best practice and stand up to the scrutiny as described by Prerana Issar – and by March 2021.

Do get in touch with Jog Hundle , Stuart Craig or Rebecca Pallot  if you would like to discuss a review of your investigation and disciplinary procedures or training for your Boards and senior managers on their implementation.

“Typical” menopausal symptoms amounted to a disability

In what is possibly the first decision of its kind, an employment tribunal has decided that an employee with range of common menopausal symptoms was entitled to the protection of the Equality Act as a disabled person.

We don’t have any information about the underlying dispute, because this decision was made at a preliminary hearing. The employer accepted that the claimant had an impairment which had a long term adverse effect on her ability to carry out day-to-day activities, but argued that this effect was not substantial.

The employment judge summarised the employer’s argument like this: 

“The thrust of the Respondent’s argument is that the Claimant suffers from “typical” menopausal symptoms and that, in the final analysis, she can undertake all relevant activities and therefore the impact is not substantial.”

However, after assessing the medical evidence and the claimant’s account of her symptoms and their effect, the employment judge disagreed:

“I see no reason why, in principle, ‘typical’ menopausal symptoms cannot have the relevant disabling effect on an individual. The descriptions of the potential impact of symptoms on day-to-day activities in the EHRC Code of Practice seems to me to be particularly relevant to the claimant’s situation. I have little hesitation in concluding that the effect of her menopausal impairment on her day-to-day activities is more than minor or trivial.”

Tribunal decisions are not binding, but this one serves as a reminder – should one be needed – of the risks employers run by trivialising the impact of menopausal symptoms in their workforce. It would appear from the stance taken by the respondents in this case that they did not fully appreciate how debilitating common menopausal symptoms can be, particularly the psychological ones.

In contrast to the position when I last wrote about this issue here, there are now a number of accessible resources for employers on the menopause. These include ACAS guidance and a new landing page created on the NHS employers website here.

Jog Hundle

New post-Brexit immigration system: staffing and recruitment

Getting ready for 1 January

Ensuring compliant recruitment is just one of a number of issues HR professionals and those responsible for recruitment and managing immigration risk in the health and social care sector need to be aware of.  Not to mention working out what roles qualify for sponsorship/visa options and ensuring staff undertake appropriate RTW checks to avoid risks of illegal working or discrimination – these are just a few of the issues HR professionals need to consider.

Alex Russell is hosting a webinar on 1 December, looking at what businesses need to know about the new immigration system being implemented.

Alex will cover:

• The new immigration system, focussing on the key changes that are being implemented from 1 December 2020
• Actions that are required in relation to existing EU staff
• Right to work document checks following Brexit
• Steps for employers to take now to prepare for the new immigration landscape

To register your free place, click here. We hope you can join us

A ‘perfect storm’: a restrictive immigration policy and the adult social care sector

Care England, the largest representative body for independent providers of adult social care, has written to the Home Secretary asking her to reconsider future immigration plans. This follows the Government’s rejection of the Migration Advisory Committee’s (MACs) Shortage Occupation List (SOL) recommendations published last week. It says that the adult social care sector is “already afflicted by a workforce crisis” as a result of the pandemic and these plans have the potential to further exacerbate the pressures on the sector. The letter also takes issue with the planned points-based immigration system which Care England explains does not provide sufficient routes for adult social care works to enter the UK.

In a new report published this week from independent think tank, IPPR it found that ending the free movement of EU citizens poses “deep challenges” for a number of sectors, including social care and that the new restrictions could inhibit recruitment in the sector.

While Care England welcomes many of the Government reforms to the immigration system next year, including the lowering of the skills threshold for the skilled worker route and the streamlining of the sponsorship system, it believes that reforms to the new system need to go further in line with IPPR recommendations which they summarise in four key areas:

• Extending the shortage occupation list to allow for the inclusion of jobs at all skill levels, reflecting the fact that skills shortages can exist in any part of the labour market.
• Following the Migration Advisory Committee's advice to immediately add new occupations to the shortage occupation list in time for the introduction of the new system, in order to address existing skills shortages in sectors critical to the pandemic response.
• Reducing the salary threshold of £25,600 to the living wage (i.e. £19,344 annual salary for a 40 hour week), which will bring the immigration system in line with labour market needs while preventing undercutting.
• Exempting employers from the immigration skills charge if they can demonstrate to the Home Office that they are investing in skills and training, in order to reward employers who are training up the next generation of workers.

If you would like to discuss any of the issues raised, or how to navigate the new immigration landscape, do get in touch – we have a friendly and expert immigration team.

Alex Russell

The future of work in the NHS

Members of the employment health and care team share their experience of four key topics relating to the future of work in the NHS:

• Establishing the framework to facilitate flexibility (Jog Hundle)
• Remote hearings: opportunities and pitfalls (Rebecca Harker-Smith)
• Returning to the workplace: the limits to consensus (Danni Belbin)
• Progressing race equality (Becky Pallot)

You can read all four articles here.

Editorial note: These articles first appeared on the Strategic Workforce Forum October 2020.

Update: cap on public sector exit payments takes effect next month

Regulations implementing the £95,000 cap on public sector exit payments were made on 14 October and take effect on 4 November.

The Regulations apply to most public sector organisations (including NHS bodies, local authorities and Central Government) as well as some arms-length bodies and cultural institutions. The full list of organisations to which the new cap applies is set out in the schedule to the Regulations.

There a number of complexities, particularly around pensions, but the broad picture is as follows:

• As well as covering all ex-gratia payments, the cap will extend to contractual entitlements on termination of employment, with the exception of notice pay (capped at 25% of salary) and accrued holiday pay
• Statutory redundancy payments and payments to compensate for injury or illness (including injury to feelings) will be exempt
• The value of any entitlement to an unreduced pension on early retirement will also be captured (these benefits ceased to apply in the NHS from March 2015)
• There are record-keeping and reporting requirements to support the obligation to apply the cap
• There is power to apply for a relaxation of these new rules in certain circumstances – for example where applying the cap would cause hardship. More details will be set out in a treasury direction which is expected to be published shortly

There are no transitional provisions in the Regulations, so it appears that they will apply to payments made on or after 4 November, even if they are made pursuant a legally binding agreement that was entered into prior to that date.  

Indeed the way the Regulations interact with employers' contractual obligations is a matter of some controversy, particularly when it comes to long-standing pensions obligations (for example in the local authority sector). The Government appears to be of the view that the Regulations take precedence over any contractual obligations that conflict with them, but this issue may soon be tested in the courts.

Charles Pigott

The importance of learning: spotlight on the health service ombudsman's recent reports

In the second of a series of three blogs on the importance of learning, Jill Mason explores the Parliamentary and Health Service Ombudsman's recent reports. 

Their annual Casework report is only a small cross section of the cases they completed in 2019 but the reason they selected the cases featured is because they are typical of many of the complaints they see. The plan is that these new annual casework reports will share some of the PHSO’s most significant findings.

Almost 80 per cent of their work is made up of complaints about the NHS. They encourage public bodies to learn from the cases not just in terms of improving frontline services but also in terms of complaint handling – to learn from the mistakes of others.

Whilst they emphasise that they do NOT see all the good examples of public service they also feel strongly that complaints are a vital source of learning and should be looked at openly and honestly and be used to drive continuous improvement.

Cases cover GP practices, acute trusts and mental health trusts.

By April 2021 they will be publishing the majority of their decisions anonymously too.

Making Complaints Count followed an invitation from the House of Commons Select Committee on Public Administration and Constitutional Affairs to the PHSO to explore the state of local complaints handling. Interviews with a wide range of individuals and reviews of over 300 PHSO reports were drawn upon.

In his foreword, the ombudsman explains that what complaints staff tell him about their role and experience often provides a raw picture of a complaints system that is in urgent need of reform and investment. He notes how coronavirus will amplify pressures on an already fragile complaints system. He is of the view that more is needed to support and strengthen frontline complaints handling.  One output is the Complaints Standards Framework referred to below.  He seeks effective and inclusive leadership and is concerned to ensure senior leaders invest in their staff through access to better, more consistent training and professional development in complaints handling.

He also recognises that some of the expectations raised may also be relevant to how patient safety investigations are approached, particularly around training and capacity and the need for a more open and learning culture.

Issues that came up in their interviews include:

• Reusing the same standardised text from previous responses rather than providing a personalised response
• Mislabelling of complaints as concerns
• Dealing with the “top coat” of a complaint rather than the underlying issues
• NHS Resolution’s “Saying Sorry” and the statutory duty of candour do not always appear to be understood in terms of making apologies
• Lack of protected time to investigate complaints
• Real time feedback is critical to help identify potential fault lines in services and prevent these becoming longer term issues
• Lack of sufficient publication of insight and learning from complaints
• Need to proactively seek feedback and resolve concerns promptly to prevent issues escalating into a protracted complaints process
• Face to face early intervention meetings can avoid a long and frustrating process of communication by letter
• Delays
• Not responding to points raised, not acknowledging failings and not understanding what went wrong

There are also much wider issues covered such as abuse and intimidation, lack of a career path and support for staff complained about.

The report does however also set out case studies of positive steps taken by several Trusts, including Mersey Care and Nottinghamshire Healthcare NHS Foundation Trusts.

In terms of next steps they suggest a review of the 2009 Complaints Regulations and whether the PHSO will be granted statutory Complaints Standards Authority powers.

The draft Complaint Standards Framework  is described as a summary of core expectations for NHS organisations and staff.  It is a short nine page read which describes an effective complaint handling system as one which:

• Promotes a learning and improvement culture
• Positively seeking feedback
• Is thorough and fair
• Gives a fair and accountable decision

Particularly, with regard to the learning and improvement culture, it lists seven points, including every organisation has in place appropriate governance structures to ensure senior staff regularly review information arising from complaints and are held accountable for ensuring the learning is acted upon to improve services. There is emphasis on reporting on how new expectations are being met.

The PHSO hope to publish the final version of the Framework (along with next steps for how it will be embedded) in early 2021.