2023 Employment Law Updates in the Healthcare Industry

This article written by Toby Pochron, Senior Associate in the Freeths LLP Employment Law Department, details important updates in employment law in 2023.

 

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Introduction

With the new years past us and most of our new year’s resolution now slowly coming to a halt, we can shift our focus towards something far more exciting. You guessed it, employment law!

In this article, we will summarise the proposed changes to employment laws that may potentially have an impact on the Healthcare sector.

Harpur trust v brazel – holiday accrual

The widely publicised case of Harpur Trust clarified that part year workers (for example, term-time workers) are still entitled to the statutory minimum of 5.6 weeks holiday per year at their average week’s pay (52 weeks average excluding weeks with no earnings).

Indeed, many employers raised concerns about the potential anomalies resulting from this decision with part-year workers working only a few weeks of the year but yet remain entitled to 5.6 weeks of full-paid holiday.

This is particularly an issue in the healthcare sector which draws on bank workers on an ad hoc basis or where a practice engages with other part time or temporary staff regularly. It is a good idea to risk assess these workers now to make sure that they have indeed been offered the correct amount of leave.

The government has now proposed a legislation designed to avoid such anomalies. The Government’s proposal is that the 52 week average used to calculate holiday pay should in future include weeks in which there are no earnings. This would mean that the sum for a week’s holiday pay will be proportionate to the individual’s annual earnings.

The consultation closes on 9 March 2023, and it is possible that the legislation could be introduced at some point in 2023.

Protection from redundancy (pregnany and family leave) bill

This proposed legislation intends to provide pregnant employees and new parents with greater protection from redundancy during or after pregnancy or following periods of maternity, adoption or shared parental leave.

The current law states that employers must offer employees who are absent under one of the above types of protected leave an alternative position where one is available before considering redundancy and should give that individual priority over others for any available role (this being one of the only types of lawful positive discrimination). The proposed bill would extend this redundancy protection to also include pregnant employees and new parents returning to work after taking any of the above types of protected leave. The extended period would cover the time from when a woman tells her employer that she is pregnant until 18 months after the birth of the child.

This legislation will ensure job security for employees who are in a vulnerable position and minimise the risk of workplace discrimination.

Pregnancy and Family Lave Protection from Redundancy Bill

Worker Protection (Amendment of Equality Act) 2010

This bill which is supported by the government creates vicarious liability for harassment of employees by third parties.

The bill suggests that all employers should take reasonable steps to prevent sexual harassment of their employees and provide for a compensation uplift in sexual harassment cases where there has been a breach of the employer duty. If this bill is enacted, employers should consider reviewing their existing policies and training programmes.

This is again particularly relevant for those who employ or engage staff in a healthcare setting. Healthcare staff will regularly come into contact with patients, others healthcare staff from different agencies and then members of the public in general. If this legislation comes into law then there will be a positive duty to take reasonable steps to protect staff from sexualised harassment whilst at work – this will take some proactive decisions by healthcare providers who should look to leverage technology now in preparation for this.

National Minimum Wage

Following recommendations from the Low Pay Commission, the Government has agreed a 9.7% increase* in rates to apply from April 2023. These are as follows:

• aged 23 and over to £10.42 an hour
• 21-22 year olds to £10.18 an hour (10.9%) • 18-20 year olds to £7.49 an hour • 16-17 year olds to £5.28 an hour • apprentice to £5.28 an hour • accommodation offset rate to £9.10 an hour (4.6%)

Employers should ensure their contracts of employment are updated when the new National Minimum Wage rates are enforced in April.

Deductions

Currently, an employee can only commence the process for bringing a claim for unlawful deductions from wages within three months (less one day) of any deduction. The exception to this rule is where there are a series of deductions which take place with no more than a three month gap between each. If there is more than a three month gap then any earlier deductions could be considered as ‘out of time’ and therefore the Employment Tribunal may refuse to hear them.

The Supreme Court is set to deliver a judgement in the case of Chief Constable of The Police Service of Northern Ireland v Agnew and others and decide whether to uphold the Northern Ireland Court of Appeal decision that unlawful deductions would not be interrupted by gaps of more than three months between deductions or return to the current principle. However, the Supreme Court could very well establish a completely new principle but we believe that this is unlikely.

Extra bank holiday for the King’s coronation

6th May has been scheduled to mark the King’s coronation which means that we are due to have an extra bank holiday on 8th May 2023.

This should be treated as any other extra bank holiday. Employers should refer to the employee’s contract of employment to decide whether the employee has contractual right to have the day off. The wording of the contract should be considered very carefully. Most standard contract states that the employee is entitled to have bank holidays off or that they are entitled to set number of bank holidays in a year, for example 8 bank holidays in England and Wales. If the former applies, the employee has an automatic right to have the day off but if the latter applies, there is no automatic right.

However, as coronations are a very occasional event and in the spirits of celebrating a new era, it is likely that many employers will give their employees the day off regardless of their contracts.

Conclusion

We hope this summary has given you an overview of the some of the employment law related changes that are relevant to the health sector in 2023. Please not that most of the changes are subject to parliaments acceptance and the final version of the law may vary from the proposed bills.

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