Employment news round-up, April 2014

This month's Employment news round-up is brought to you by Jodie Sinclair and covers Early Conciliation, new whistleblowing guidance for health and social care, a DBS review, a new code of practice on discrimination and illegal working and details of a government taskforce report on the Working Time Directive and its impact on doctors' training.

Early Conciliation update

Early Conciliation is with us! At least, in its optional form, which has been available from 6 April and will be compulsory from 6 May 2014. Please click here for our summary of the Early Conciliation scheme.

Acas has now published a new leaflet, Early Conciliation Explained, which sets out how the procedure will work and how requests for Early Conciliation may be made. 

Acas has also launched an Early Conciliation portal. The portal contains information about the EC process for claimants and respondents and their representatives, and includes the EC form for would-be claimants to start the process.  It is possible for employers to initiate Early Conciliation themselves, but there is no form for this, so employers must make contact by telephone: 0300 123 1122. 

Given that claims covered by Early Conciliation are likely to start appearing in the coming weeks and months, you may wish to consider raising awareness amongst managers, and / or putting in place policies and procedures on where requests should be directed and how they should be handled.

New whistleblowing guidance for health and social care

As part of the ongoing response to the Francis Report and the failures at Winterbourne View, new whistleblowing guidance for health and social care employers (and employees) has been published. In addition to providing detailed guidance and policy standards, this document also contains a useful flowchart on how to deal with concerns and also sets out 'tips' for managers.

DBS reviewing guidance

The Disclosure and Barring Service (DBS) has been found to have breached the Data Protection Act by asking for unnecessary disclosure of low level convictions.   It is no longer necessary for applicants to disclose certain minor and historic cautions and convictions when applying for a DBS check, but applicants were still being asked to disclose details of all previous offences, cautions and warnings. In light of the ruling, the DBS has agreed to review and update its existing guidance to explain what information will be passed to prospective employers.

Discrimination and illegal working

The Home Office has published a new draft Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working, which provides guidance on how to avoid race discrimination when complying with the duty to carry out pre-employment immigration checks under the Immigration, Asylum and Nationality Act 2006. The draft Code advises employers, as a matter of good employment practice, to have "clear written procedures for the recruitment and selection of all workers, based on equal and fair treatment for all applicants". It recommends that employers carry out statutory immigration checks for all prospective workers, not just for those who are from an ethnic minority or have a foreign accent. The draft Code will be supported by separate government guidance and a Code of practice on the civil penalty scheme for employers. Once approved by the Secretary of State, the final version of the Code will have statutory force and may be taken into account by courts and tribunals. The exact date from which the Code will apply has not yet been confirmed.

Taskforce report on Working Time Directive and doctors' training

A taskforce, which was convened from October 2013 to March 2014 has published its report this month. Please click here for a copy of the report and its accompanying letter to Jeremy Hunt.

The key questions examined by the taskforce were

1. What impact have the UK working time regulations and court judgments associated with the Working Time Directive (WTD) had on the training of doctors in the UK, and by extension on the delivery of high quality patient care?
2. If significant problems were identified, could solutions be recommended that would allow different specialties in medicine the flexibility to provide streamlined and appropriate treatment for patients, and in a manner which was practical for the NHS?

The report found that the WTD has had an adverse impact on doctors' training in certain medical specialities, and makes five key recommendations.

1. The NHS should review and share best practice in the design of working practices, and successful delivery of patient care and the training of junior doctors. Local organisations should be prepared to redesign their teams and working practices.
2. The specific challenges faced by some specialties should be addressed as part of the taskforce's wider recommendations.
3. The lack of flexibility brought about by the court judgments is tackled, whilst ensuring doctors don’t suffer undue fatigue.
4. The possibility of distinguishing more clearly 'service' and 'training' aspects of doctors' work and 'ring fencing' education and training time for junior doctors should be explored.
5. Further consideration should be given to whether there should be more widespread use of the individual opt-out of the WTD – whilst ensuring that there is no adverse effect on doctors who choose not to opt out.

The next step will be see which, if any, of the recommendations the government decides to adopt and whether it will propose any new legislation or guidance.  However, our experience of working with health employers suggests to us that – whilst some employers may be pleased to hear that the government is addressing the question of managing quality and performance within the confines of the WTD – hearts may be collectively sinking at the prospect of the impact of the above proposals on the (already horrendously complex) issue of monitoring junior doctors' rotas and banding issues.