Mills & Reeve: Health and Care Update

Consultation on mandatory Covid-19 jabs for care home staff

The Department of Health and Social Care has launched a five week consultation looking at requiring care home providers caring for older adults to deploy only those workers who have received their Covid-19 vaccination.

The policy intention is to amend regulations making this a legal requirement for care home providers operating in England.

In its consultation document, the Department explains that while vaccination uptake rates are increasing slowly week on week, there are still a high number of older adult care homes which do not have the levels of protection needed to reduce the risk of an outbreak. As at 4 April 2021, 78.9% of all eligible workers in all older adult care homes had received at least their first vaccination. However it says the overall figure of 78.9% for staff masks significant variation at a regional, local and individual care home level.

According to the Department all eligible care homes have been visited and vaccines offered to staff and residents, with the vast majority of homes having now had repeat visits. The Department continues to offer targeted support to older adult care homes where vaccines update is low, such as in London.

It is in this context, and to help increase vaccine take up, that the Government is considering amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 making it mandatory for workers in older adult care homes to have a Covid-19 vaccination.

The proposed legislative change             

The intention would be to insert the requirement as a new provision in the fundamental standards in Part 3 of the Regulations, it says most likely into regulation 12 (which deals with safe care and treatment) as a supplement to regulation 12(2)(h), which requires that, as part of providing safe care and treatment, providers must assess the risk of, and prevent, detect and control the spread of, infections, including those that are healthcare associated.

There are also plans to amend the Code of Practice on Infection Prevention and Control and its associated guidance, which is issued by the Secretary of State under section 21 of the Health and Social Care Act 2008 and to which providers must have regard when complying with their obligations under regulation 12 of the Regulations. Draft amendments to the Code of Practice have been published alongside this consultation (see Annex A).

The consultation document provides that due to the importance of this issue, the Government intends to change the law “quickly”.

It is also the Government’s intention for care staff in older adult care homes to be required to keep their COVID-19 vaccination status up to date.

The role of Care Quality Commission

The consultation document covers the regulator’s role in monitoring and enforcing compliance with the new regulation. It provides that vaccination rates would form part of a suite of information CQC would consider when determining which settings to inspect. Any care home that has any person over the age of 65 would fall within the regulator’s inspection remit, with care operators expected on registration and inspection to provide evidence of their care staff’s compliance with MHRA approved Covid-19 vaccine. And the usual civil enforcement options available to CQC would apply, including criminal prosecution and fixed penalty notices.

Consultation receives mixed response               

Leading care home operator, Barchester Healthcare has confirmed its support for the Department’s proposals with chief executive Dr Pete Calveley commenting:

“Barchester believes the vaccination programme has transformed the outlook for the vulnerable residents in older people care homes, a significant proportion of whom will not acquire full immunity despite being vaccinated. We have not lightly introduced our vaccine policy, but we take the view that providing safe care for those we care for is our paramount obligation. As the Chief Medical Officer has said, it is a professional duty for care home staff to accept the vaccine unless there is a medical reason they should not. As time has progressed, the safety, efficacy and transmission-reduction evidence has become ever stronger, which supports our initial view. For those reasons we support the proposal by the DHSC to open a consultation on this important matter and strongly encourage other providers to support this proposal.”

The National Care Association which represents small and medium sized care providers, have cautiously welcomed the consultation on mandatory vaccinations with chair Nadra Ahmed commenting: “It is disappointing to note that government have singled out care workers despite the fact that our colleagues is the NHS also care for vulnerable citizens in acute settings”.

Care England chief executive, Professor Martin Green has welcomed the opportunity to respond to the consultation but expressed concerns about its very short timescales to submit views – the usual consultation period is 12 weeks. He also says that should the vaccine be mandatory for adult social care staff for older people “it begs the question whether it should not be mandatory for the NHS, those working in other care home settings, supported living and hospices”.

It is clear that there is not a consensus amongst care providers on whether care staff should be legally required to be vaccinated, but clearly if the proposed legislation is put in place, the Government will need to consider how this will be managed and implemented, and monitored. It will also require the Government to consider the implications for the sector’s workforce: the risks and impact on recruitment and retention of the workforce with 112,000 current vacancies and the potential for burnout that exits this year.

Under current proposals, care home managers will be responsible for checking that workers deployed in the home are vaccinated or medically exempt. This will require some form of evidence and the Government is considering the options, which may include showing vaccination status on a mobile phone app.

Have your say – and by Friday 21 May 2021

You can share your views by completing the public survey here and you can read the consultation document here.

Amanda Narkiewicz

Primary Care Networks: 10 top tips when sub-contracting

In this update, we look at an ever increasing trend when it comes to sub-contracting the delivery of the Network Contract Directed Enhanced Service (DES) of any part of the DES (whether to a third party provider, your own provider arm or otherwise) and highlight some of our top tips when it comes to documenting this.

1. Certainty. So that there is certainty on the terms applicable to the sub-contracting, we would always recommend that a formal agreement is agreed between the parties. Having supported a number of PCNs, and given the evolving nature of the Network Contract DES, we generally adopt a “framework” approach towards such agreements whereby the the front end part of the agreement covers the overarching terms applicable to the sub-contracting arrangements and the back end contain schedules that include the service specific requirements and can be updated with ease.

2. Services. Be specific on the services to be supplied. These should (where relevant) align with the relevant service requirements of the Network Contract DES.

3. Service changes. Be mindful of the fact that the Network Contract DES varies year on year so consider including provisions that allow the services provided by the supplier to be changed with relative ease.

4. Location. Be specific on the locations from which the services are to be provided. Consider what, if any, access the core network practices will need to afford the staff employed by the supplier.

5. Supplier obligations. Be clear on the general and specific obligations that will apply to the supplier. This may include:

• complying with applicable laws, statutes, regulations from time to time in force;
• performing the services with skill and diligence in accordance with good medical practice and the relevant requirements of the Core Network DES;
• using personnel who are suitably skilled and experienced to perform the tasks assigned to them and (where relevant) those that satisfy the criteria set under the Network Contract DES;
• providing such information as is required to ensure that the practices and PCN as a whole complies with their reporting requirements and to otherwise co-operate in all matters relating to the provision of the services they are to provide.

6. Charges & payment terms. Be specific on the charges that will be payable for the services provided and the terms applicable to those payments. As part of this, care will be needed when it comes to considering the VAT position on services being supplied. If they are VATable supplies and no exemption applies, then consider whether the charges should, from the perspective of the PCN, be inclusive of VAT.

7. Liabilities & indemnities. Be clear on the limits on liability (if any) applicable to the services provided by the sub-contractor and the indemnities that will bite in the event that the sub-contractor is in breach of their obligations and that breach causes a loss, demand, expense or other liability.

8. HR. Be clear on how HR issues are to be handled. To the extent that the supplier employs the relevant staff members, then we would expect an explicit acknowledgement that the handling of all HR matters will sit with the supplier but for there to be a mechanism where service deficiencies can be discussed between the parties so appropriate measures can be taken to address these.

9. Termination. Be clear on the circumstances where the parties can bring the sub-contract arrangements to an end. This commonly includes the ability to terminate:

• if the Network Contract DES, or any relevant specification which is the subject to the sub-contracting arrangements, comes to an end;
• if there is a material breach and/or persistent breach;
• if the sub-contractor acts in a manner which brings or is likely to bring the PCN or any of its members, into disrepute;
• if relevant, if the sub-contractor is a member themselves and they cease to be a member of the Network; and
• where either party serves a specified length of notice to terminate (although we would recommend that any such notice should only allow the arrangements to cease at the end of the Network Contract DES year within which notice is served).

10. Exit arrangements. Be clear on the exit arrangements that will apply if the sub-contract and/or any specific service provided under the same comes to an end. Consider whether you need express obligations on the supplier to provide an orderly handover of services to any new provider and what (if any) provisions apply when it comes to the transfer of any affected employees under TUPE.

If you need support in connection with the sub-contracting of services as a PCN or supplier then please contact Rob Day or for information on our primary care expertise visit our webpage here.

Supreme Court ruling on sleep-in shifts

The Supreme Court’s judgment in the Mencap case confirms that employers do not have to pay their workers the national minimum wage unless they are awake for the purposes of working. This important decision will be welcomed by employers in the care sector, in particular, and provides much needed certainty.

Carers providing personal care to vulnerable people often work sleep-in shifts, during which they have to be at or near their workplace, but are expected to be asleep – save for in an emergency.

Previous cases, for example British Nursing v HMRC, had held that a worker could be “working” even if asleep. The Supreme Court has now overruled these cases.

Everything turns on the interpretation of the NMW Regulations in relation to “time work”, where – broadly speaking – a worker is paid by reference to the number of hours they work (rather than by salary). The Regulations provide that time work includes hours when a worker is “available”, which is defined as the “hours when the worker is awake for the purposes of working”.

In coming to its decision, the Supreme Court looked at a report of the Low Pay Commission which the government had accepted when the first version of the NMW Regulations was introduced in 1999. The report recommended that:

“For hours when workers are paid to sleep on the premises…workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work.”

The Supreme Court concluded that the clear intention behind the ‘sleep-in exception’ (in what is now Regulation 32) was that employers should continue to pay sleep-in workers a set allowance and not the NMW.

Simply being present or having to have a “listening ear” did not mean someone was working for NMW purposes. They had to be awake and have specific duties to perform.

The arrangements of sleep-in workers vary greatly and so the specific contractual agreement must still be considered in each case. However, the broad principles are now clear, to the benefit of employers.

Amy O'Brien

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