KCA Employment Law August 2022 update

Employment Law Update – Summary August 2022

One of the benefits of being a member of My People Partner is that you receive an in-depth Employment Law Update at the start of every month.  What follows is a summary of the August 2022 report.

Go to My People Partner for more information on the programme or for advice on employment law and HR matters.

  1. Fit notes

On 1 July 2022, the Department for Work and Pensions (DWP) published Getting the most of the fit note: guidance for healthcare professionals Getting the most out of the fit note: guidance for healthcare professionals – GOV.UK (www.gov.uk). The guidance follows the expansion of the category of people who can sign fit notes for the purposes of SSP and social security claims and the removal of the requirement for fit notes to be signed in ink. There will be a transitional period during which both the 2017 and 2022 versions of the fit note will be legally valid while relevant IT systems are updated and stocks of paper fit notes in hospitals are replaced.

The guidance reiterates that an assessment is about whether a patient is fit for work in general and not job-specific. It also recognises that incomplete fit notes can make it difficult for employers to support a patient and cause delays to a patient’s return to work.

Information is provided on the factors that should be considered when assessing fitness for work, as well as information on how to discuss a patient’s beliefs about health and work if they are reluctant to return to work. In addition, there is information on how the free text section of the note should be completed, including the importance of giving practical advice to employers. This section notes that the only reference to a patient’s current job should be in the context of possible workplace adaptations or if the job may be affecting their health. There are also several case studies and an FAQ section.

  1. Right to work checks

The government has announced the first certified providers for digital identity checks to establish candidates’ right to work in the UK.

A partnership between the Post Office and secure digital ID app Yoti has been named the first digital identity service provider (IDSP) to be certified by the Department for Digital, Culture, Media and Sport. This will allow organisations to complete the digital identity verification element of right-to-work checks for British and Irish citizens who hold valid passports.

The Post Office and Yoti will provide identity verification online, in-person at Post Offices, and via a digital identity app.

  1. Ban on exclusivity clauses

Draft regulations were laid before Parliament in July 2022 which will prohibit exclusivity clauses in the employment contracts of workers whose earnings are on, or less than, the lower earnings limit (currently £123 a week). The draft regulations follow a government consultation on extending to other low earners the ban on exclusivity clauses which was introduced in 2015 to zero-hours workers’ contracts.

The draft regulations largely mirror the rights of zero-hours workers set out in section 27A of the Employment Rights Act 1996 and the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations. They will make unenforceable any contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer’s consent. Where they breach an exclusivity clause in their contract, employees will be protected from unfair dismissal and workers will be protected from detriment. The new unfair dismissal protection will have no qualifying period. Where an employment tribunal finds that a worker has suffered a detriment, it may make a declaration and award compensation it considers just and equitable up to an amount equal to the unfair dismissal basic and compensatory award.

The draft regulations will come into force 28 days after the day on which they are made and apply to England, Scotland and Wales.

Reference: Draft Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022.

Members of the My People Partner programme also received information relating to:

  • Workplace discrimination – In June 2022, Acas published new information on its website on asking and answering questions about discrimination at work Asking your employer questions about discrimination: Asking and answering questions about discrimination at work – Acas.
  • Tips – Last month the government announced that it was backing the Employment (Allocation of Tips) Bill, a Private Members’ Bill. The Bill, which will ensure that all tips go to workers by making it unlawful for businesses to hold back service charges, passed its second reading on 15 July 2022.
  • Neonatal care – Last month, the government announced that it was backing the Neonatal Care (Leave and Pay) Bill, a Private Members’ Bill. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 15 July
  • Menopause in the workplace – Last month the government published its response to the independent report, Menopause and the workplace: how enable fulfilling working lives Menopause and the Workplace: How to enable fulfilling working lives: government response – GOV.UK (www.gov.uk).
  • Case Law
    • Holiday for part-year workers

To discuss any of the information within this document or to find out more about My People Partner, contact us at KCA

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