Health and safety protection for employees
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 came into force on 31 May 2021, extending protections to workers previously only available to employees.
This amendment has been made as a result of a recent High Court ruling that the UK had failed to properly implement the EU Health and Safety Framework Directive (89/391/EC) by limiting protection from detriment on health and safety grounds to employees and not protecting workers in the same way.
Workers are now protected from being subject to a detriment on the grounds that they are (i) absent from work (or propose to be absent) due to a reasonable belief that attendance would put them in serious and imminent danger, or (ii) taking (or proposing to take) appropriate steps to protect themselves or others in the reasonable belief that there is serious and imminent danger. This will apply in relation to any act of the employer, or failure to act, on or after 31 May 2021. It is also anticipated that the existing PPE Regulations will be similarly extended to cover workers, following further consultation.
Following a consultation earlier this year, the Government has confirmed that vaccination against COVID-19 will become mandatory for care home staff, volunteers and others entering the home for work purposes.
The consultation response outlines the Government’s plan to amend the current Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to bring into effect mandatory vaccinations, subject to certain exemptions. There will be a 16-week period for staff and those other individuals covered by the requirement to be vaccinated and produce evidence of vaccination, unless they are exempt.
There are some additional changes to the proposals following the consultation.
The policy will apply to all care homes registered with the Care Quality Commission (CQC) – not just those for residents aged 65 and older.
The requirement will extend to all those who enter a care home, not just staff and volunteers. It means that other health professionals, hairdressers, tradespeople and CQC inspectors will also have to be vaccinated.
Exemptions will apply to residents, friends and families, those who are medically exempt, anyone assisting with an emergency (including emergency maintenance), anyone working in external grounds and those younger than 18.
The consultation response also confirms that there will be a further consultation to consider broadening the scope of the compulsory vaccination policy across the health and social care sector.
The consultation response includes draft text for an amended Code of Practice on Infection Prevention and Control, to reflect the revised policy on vaccinations. Please note, there is currently no proposed timescale for these changes to come into force.
It was recently reported that the publishing company Bloomsbury will be making vaccination compulsory for employees returning to its offices, “for the wellbeing of all our staff”. Introducing compulsory vaccination for employees not covered by the proposed statutory measures is a controversial move and will present employers with some potentially thorny issues to resolve. We would suggest employers seek advice in advance of introducing any such requirement.
Consultation response: single enforcement body
The Government has published its response to a consultation it first issued in July 2019, on proposals to create a single enforcement body for employment rights, combining the functions of the existing HMRC National Minimum Wage Enforcement, Employment Agency Standards Inspectorate and the Gangmasters and Labour Abuse Authority.
The response confirms the Government’s intention to bring forward the necessary legislation to create a single enforcement body, with an expanded remit for the protection of vulnerable workers. The body will also provide support to employers, including detailed technical guidance.
The new body will cover enforcement carried out by the existing bodies, and will have an extended remit to cover statutory sick pay, holiday pay, unpaid employment tribunal awards, labour exploitation and modern slavery. It will adopt a consistent approach to enforcement across its remit, by issuing compliance notices, civil penalties and the ‘naming and shaming’ of non-compliant businesses.
Primary legislation will be required to create the new enforcement body, and the Government has not yet committed to a timeframe for bringing it into effect, only stating that it will be when parliamentary time allows.
These articles are from the June 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2021.