Health and Social Care Update - November 2018
Nov 20 2018
Policy and law relevant to those involved in health and social care work.Read More
The nights are drawing in, there’s a distinct cold snap in the air and the school run traffic jams have started again; but there are good things about October too: stamping on crunchy leaves, games of conkers and the Bevan Brittan October employment law news updater, provided this month by John Moore.
In this article...
As expected, the Chancellor announced massive cuts and ‘welfare reform’ in the Comprehensive Spending Review, including a 28% cut to Councils’ funding over the next four years.
The headline points as they affect HR are as follows.
Therefore, key employment law themes will be redundancy, reorganisation, TUPE, secondment and joint working. When looking at reducing headcount, employers may also wish to consider alternative measures such as performance management and long term sickness absence management.
Whilst it might have seemed that the world stopped turning for the Equality Act to be implemented this month (please see article and November / December seminars), the usual annual increase in the minimum wage did also occur this month.
The new hourly rates are as follows.
There are two key developments in relation to whistleblowing this month. The first is a decision by the Employment Appeal Tribunal which looked at the fine line between an (unactionable) unreasonable opinion and an (actionable) ‘qualifying disclosure’ - which may be a reasonable opinion that turns out to be wrong. In Easwaran v St George’s University of London, a doctor complained that the temperature in a dissecting room was freezing cold and that he would get pneumonia. He argued that this was a ‘qualifying disclosure’ for the purposes of whistleblowing legislation because it showed that health and safety was at risk. The Employment Appeal Tribunal gave this argument short shrift, largely because the doctor’s opinion about the risk of contracting pneumonia from being cold was wrong, so there was no reasonable evidence to support his belief that health and safety was at risk.
Secondly, the Department of Health has also turned its attention to whistleblowing. It is seeking views on proposals to amend the NHS Constitution to:
Further information, and the consultation document, is available on the Department of Health’s website. The consultation closes on 20 January 2011.
Not a moment too soon (as the babies in question are definitely more than a twinkle in their parents’ eyes), the government has finally confirmed that the Additional Paternity Leave Regulations 2010 will be implemented, as enacted. This is despite a suggestion earlier this year that the Regulations were ‘under review’ and may have been either amended, delayed or repealed. The Regulations apply to employees expecting to become parents on or after 3 April 2011, and provide that male employees may take Additional Paternity Leave of up to 26 weeks. Please see our February 2010 News Round-Up for more information.
If you have not done so already, now is the time to get to grips with the detail of the Regulations and consider what consequential changes you need to make to your family friendly policies and procedures.
In an employer-friendly decision, the Employment Appeal Tribunal (EAT) has softened (slightly!) the approach that Employment Tribunals should take when deciding how to calculate the award for damages in respect of a failure to inform and consult employees in respect of a TUPE transfer. Until this month’s EAT decision in Todd v Care Concern, caselaw on this question had suggested that a Tribunal should start at the maximum award of 13 weeks’ pay and ‘work backwards’ to take account of any reasons why the maximum compensation should not be paid. The EAT has now said that this approach is wrong; a tribunal’s starting point should not “mechanically” always be the maximum award, as long as the employer has made some effort to comply with its statutory obligations, and the measures proposed are not significant.
The case also held that the obligation to inform is engaged even where the transferor does not envisage any 'measures' will be taken.