January 2022 Newsletter
Welcome to our first Update of 2022. Happy New Year and this year ‘things can only get better’ (as Brian Cox once sang in his band D-Ream before he became Professor Brian Cox and all-round smiley universe expert). We say goodbye to another year of uncertainty and weirdness. A year in which we no longer found it funny when peoples’ dogs, cats, house rabbits (apologies) and children appeared on business Zoom calls; when we ran out of boxsets and were reduced to watching live darts and re-runs of the Sweeney; but when we still had to hold our breath (behind a mask) when asking someone ‘how are you’?
Well, this is a packed Update to take us into 2022, including useful information on working from home, mandatory vaccinations in the care sector and recent Covid rules changes. But it’s not all Covid. We have details of a very interesting case concerning worker status that should be of interest to anyone who considers themselves to be self-employed or who uses self-employed contractors.
But first, Rishi’s Covid rules updates (including the SSP Rebate Scheme and changes to self-certification):
Changes to Covid rules – funds available, sick pay and sick certification
On 21 December 2021, Chancellor Rishi Sunak set out a £1bn fund to help businesses hit by the significant rise in COVID cases:
- Restaurants, bars, cinemas and theatres will be eligible (in the coming weeks) to apply for a one-off grant of up to 6,000 for each of their premises.
- £100million will be made available for local authorities to support other businesses.
- £30million will be made available through the Culture Recovery Fund to support organisations such as theatres, orchestras and museums through the winter to March 2022.
- The Statutory Sick Pay Rebate Scheme (SSPRS) has been reintroduced – this means that businesses with fewer than 250 employees can claim money to cover sick pay for employees (up to two weeks per employee) who are affected by COVID. Firms will be eligible for the scheme from today and they will be able to make claims retrospectively from mid-January.
Worker status and substitution clauses
As many of you will be aware, over the last few years there has been a number of high-profile cases which have addressed the difficult concept of whether individuals working in the ‘gig economy’ are employees, workers or self-employed.
Last month, the Court of Appeal handed down a Judgement on another case, Stuart Delivery Ltd v Augustine, which considered whether a delivery courier was a ‘worker’ or not.
A ‘worker’ is defined under section 230 of the Employment Rights Act 1996 as an individual who has entered into or works under:
- A contract of employment; or
- Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
If a person does not fit in to either of these definitions, that person would generally be considered to be self-employed.
When it comes to establishing whether there is a requirement to ‘perform personally’ the work, one of the main issues in litigation involves consideration by the court about whether the individual has a right to substitute another person to undertake the work. This was one of the main battlegrounds in the well-known ‘status’ case of Pimlico Plumbers Ltd and another v Smith. One of the key outcomes of the Pimlico Plumbers case was that if there was an unfettered right which allowed the individual to provide a substitute, this would be inconsistent with the principle of providing services personally and would therefore likely defeat the argument that the individual was a worker.
In the current case, Stuart Delivery Ltd developed a tech-platform which connected couriers with clients via a mobile app. The Claimant, Mr Augustine, worked as a courier for Stuart Delivery Ltd for approximately 5 months from late 2016.
Mandatory Vaccinations and Exemptions in the Care Sector
On 6 January 2022 the Secretary of State signed into law Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/15); https://www.legislation.gov.uk/uksi/2022/15/made. The result of this law is that from 1 April 2022 anyone providing care in a face to face setting, for example at someone’s home, will be required to be ‘fully vaccinated’. As such, care providers need to start considering consulting and methods of record keeping as if individuals are to be fully vaccinated by 1 April 2022, they will need to have had their first vaccination by 31 January 2022.
From 11 November 2021 the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the Regulations’) came into force. In essence the effect of the Regulations is that it requires all CQC-registered service providers (or registered managers) of accommodation for those who require nursing or personal care in a care home to ensure that a person does not enter the care home unless they are fully vaccinated (does not include having the booster at this stage) or provides the requisite evidence to demonstrate that they are medically exempt from having the vaccination.
In reality the application of the Regulations due to the changing deadlines and exemptions is quite difficult. We have assisted a number of clients in this area and would be happy to help with any queries you may have about the Regulations and the exemptions.
As mentioned, that are exemptions whereby a person will not be needed to be vaccinated, this is where:
- it is reasonably necessary for the person to provide emergency assistance in the care home
- it is reasonably necessary for the person to provide urgent maintenance assistance to the care home
- the person is a member of the emergency services in execution of their duties
- the person is a friend or relative of the resident visiting the resident
- the person is visiting a resident who is dying
- it is reasonably necessary for the person to provide comfort or support to a resident in relation to a resident’s bereavement following the death of a relative or friend
- the person is under the age of 18
Working from home and/or managing the risks in the workplace
On Tuesday 4 January, Boris Johnson announced that “Plan B” rules would remain in place. This means the current guidance is such that employees should work from home where they are able to (this has been the guidance since 13 December 2021 in response to the Omicron variant).
Work from home guidance has been in (and out of) place for almost two years now so it has become somewhat the norm to see remote working and hybrid working arrangements in place; however, it is useful to continually review the arrangements, the safety of the staff, and the implications. Further, more detailed, information about hybrid working can be found here: Hybrid Working • DC Employment Solicitors.
Of course, it is simply not possible to work from home in all industries and/or for some roles it just is not practicable. It is therefore vital that, in these circumstances, the employer is managing and mitigating the risks in the workplace wherever possible. The Government updated its non-statutory guidance on this point in December 2021 which can be found here: Working safely during coronavirus (COVID-19) – Guidance – GOV.UK (www.gov.uk)].
There are six priority actions that apply equally across all workplace settings. These are as follows:
- Complete a COVID-19 risk assessment – identify the risks and the control measures that can be put in place to manage those risks and keep staff updated with the findings.
- Provide adequate ventilation – ensure there is fresh air to enclosed spaces where staff are present, this can be natural or mechanical.
- Clean more often – increase how often surfaces and workspaces are cleaned, especially if used by more than one employee. Make hand sanitiser readily available.
- Turn away people with COVID-19 symptoms (visitors, employees, customers etc).
- Enable people to check in at your venue – there is no longer a legal requirement to obtain customer details but doing so will support NHS Test and Trace.
- Communicate and train staff on up-to-date safety measures in place on the premises/site.
My efforts on LinkedIn (please feel free to become a contact) are pretty much limited to an Employment Headline of the Week that has been running each Friday for the last 5 years or 6 years. 2021 provided its fair share of interesting headlines: the following were voted as the top 4:
- The Metro: “Waiter wins unfair dismissal case after ‘boss farted and wafted it towards him”
- Daily Mail: “Two [HR] executives at top accounting firm are SACKED over ‘racist’ trivia night skit where they ‘dressed up as bats from Wuhan and mocked Chinese accents’”
- The Metro: “Boss told worker ‘you need sausage’ and showed her his ‘tight’ underwear on Zoom”
- The Sun: “SEX SIRENS Pair of randy emergency workers sacked after they were caught having sex in the back of a “swaying” ambulance”