Author: Ilinca Mardarescu

The Care Act 2014 recognises that supporting carers is of equal importance to supporting the people they care for. Therefore, since the implementation of this Act, carers rights have been put on a similar footing to the rights of disabled adults. 

A carer is someone who gives support and care to an adult who is their partner, child, friend or another close relative. Under the Act, the local authority must consider the well-being of the carer and consider whether there are steps it can take to prevent, reduce or delay any needs the carer has. 

Assessment of a carers needs

S 10 of the Care Act 2014 provides that where it appears to a local authority that a carer may have needs for support now or in the future, the local authority has a duty to carry out an assessment of those needs. Neither the carers or the disabled adult’s financial resources or the level of need of support will be taken into account in making the assessment. It is still possible to have an assessment if the person that is being cared for is not receiving local authority support, or if the person being cared for doesn’t live in the same local authority area as the carer. 

How does the assessment work? 

Your local authority must offer advice and support regarding carers right to an assessment to everyone in their local area. 

• Most local authorities will require the carer to complete an online self-assessment. However, if required this can be over the telephone, on paper, or face to face instead.
• The assessment will be looked at by a trained person from the local authority or another organisation so they can understand the carers needs and how they can be met.

The eligibility criteria

• The local authority will then apply eligibility criteria to the needs of the carers needs to see which ones are eligible for support. 
• The local authority will need to understand whether your mental or physical health are affected now, or are at risk of being affected in the future. 
• They will also look at whether you are unable to look after children, care for other people who want you to, look after your home, prepare food and look after your diet, have personal relationships, take part in education, work or volunteering, or find time for social activities. If these factors combined are impacting your wellbeing you may be eligible for support. 
• After applying the eligibility criteria has been applied, the local authority carries out a financial assessment which will help them to provide the necessary support for the carer. 

How can the local authority support a carer’s needs? 

If the assessment shows that the carer has eligible needs then the local authority will implement a support plan which identifies what the carer’s needs are and how they will be met. The support plan is an agreement between the carer and the local authority, and will generally be in the form of direct payments to the carer who can then arrange and pay for their own support. The support plan is usually reviewed 6-8 weeks after it is agreed, and then at-least once every 12 months. 

Young Carers 

Section 63 and 64 of the Care Act 2014 provides that where a young carer is likely to have needs for support after turning 18, the local authority must carry out a ‘young carer’s assessment’. Within this, the local authority considers whether the young person is willing to provide care beyond the age of 18, the amount that the young carer would like to work or participate in education and the impact that providing care may have on the carer. 

Once the young carer’s assessment has been carried out, the local authority must indicate whether the young carer is likely to meet the eligibility criteria once they are 18. They must also offer advice and information about meeting or reducing the young carer’s needs for support, or about preventing or delaying further needs which may develop.

Parent carers of children

The Children and Families Act 2014 gives parent carer’s the right to a stand-alone assessment and right to services. This assessment is called a ‘parent carer’s needs assessment’; the local authority must assess whether that parent has support needs. Once the local authority has done this and assessed what the needs are they must identify the support and services available to help the carer and their family. 

For more information on the rights of carer’s, get in touch with our supportive team to help. 

Sources: https://www.rethink.org/advice-and-information/carers-hub/carers-assessment-under-the-care-act-2014/

https://imprivateclient.passle.net/post/102gzyj/a-whistle-stop-tour-of-carers-rights

As part of the Government’s roadmap out of lockdown (and in part due to the success of the vaccination programme so far) as of 1st April 2021 anyone who is classified as clinically vulnerable will receive a letter confirming they are no longer being advised to shield.

All those that have previously received a shielding letter will now be contacted again to advise that they no longer need to shield.  Public Health England has issued new guidance to those categorised as extremely clinically vulnerable which includes advice on social distancing, hygiene, work and travel.  The advice will be to continue taking precautions generally but, crucially, will state;

“Everyone is currently advised to work from home where possible. If you cannot work from home, you should now go to work.”

Importantly, as of 1st April 2021, both Statutory Sick Pay (SSP) and Employment and Support Allowance (ESA) will no longer be available on the grounds of anyone shielding.

The extended Furlough scheme will be available where employees are eligible but this is purely at the discretion of the Employer.

For employees who are still worried and concerned about going in to work, this will no doubt increase anxiety.  Employers have a duty of care towards their employees and need to ensure their health and safety where possible.  No doubt this will be a contentious matter and is likely to lead to an increase in claims being made unless handled properly.

For advice on how to deal with the transition back to work for those that have been off for a while, contact our Head of Employment, Ilinca Mardarescu.

On Friday 19th March, the Supreme Court handed down its long-awaited decision in the case of Royal Mencap Society v Tomlinson-Blake.

The findings of this case are important for the care industry in particular, as the Supreme Court has held that employees who are expected to work ‘sleep in shifts’ do not earn the National Minimum Wage (NMW) for time spent asleep on the job.

The 32-page judgment highlights that a sleep-in worker who is “merely present” is treated as not working for the purposes of calculating pay under the NMW regulations. The argument that a worker must be available at such hours does not mean they will be expected to work during these hours. 

In the Court of Appeal, the Claimant had argued that as a Care Worker, she has to have a “listening ear.” Like in the Court of Appeal, the Supreme Court also rejected this argument as they concluded that having a “listening ear” does not amount to “working” for NMW purposes.

One of the many deciding factors, in this case, was the fact the judges gave weight to the Low Pay Commission’s recommendations that sleep-in workers should be paid an allowance rather than the NMW unless they are awake for work purposes.

This decision will no doubt come as a big relief to local authorities and employers in the care industry, particularly due to the effects of the COVID-19 pandemic on this sector. It spares the care sector of the risk of paying about £400 million in back pay if time spent sleeping was found to be working time.  

Up to now, the case of British Nursing v HMRC had indicated that sleep-in shifts could qualify for the national minimum wage. Although all of the judges in this case agreed the British Nursing v HMRC case was not a correct interpretation of the law (albeit they could not agree on the reasons). 

Undoubtedly, this judgment will be disappointing to unions and workers who were campaigning for better wages and conditions in an already low-paid sector.  We shall have to wait to see whether the Government will decide to intervene to change the sleep-in policy across the sector. 

The Supreme Court handed down its decision in Uber v Aslam last week which confirmed that Uber drivers should be classed as workers and not self-employed.  This decision means that thousands of Uber drivers will be entitled to basic rights which include access to minimum wage, rest breaks, and paid holidays.

The case initially commenced in 2016 and has traveled up through the courts being appealed (unsurprisingly) by Uber at every turn.  The Supreme Court however is the highest court in Britain meaning this decision is the final say on the matter. 

The flood gates are now open for all Uber drivers to seek compensation which could lead to Uber facing a large compensation bill.

One of the main arguments put forward by Uber is that its drivers are not workers because the drivers can choose the hours they work.

The ruling concluded that Uber must consider its drivers as workers from the moment they log on to the app and are available to work in the area until they log off the app. 

The Supreme Court decided that because of the factors listed below, the drivers were in a position of control and subordination to Uber.

• Uber sets fares which means they determine and control how much drivers earn
• Uber sets the terms of the driver’s conditions and so the drivers have no input
• Uber can penalize or terminate driver’s contracts if the drivers reject too many requests for rides and so the drivers are constrained by Uber
• Uber monitors drivers’ service through a star rating and they can end their employer-employee relationship after warnings and the service does not improve.

The decision could well have huge ramifications not just for Uber but other industries which rely on a form of imposed “self-employed” contracts.  The case will no doubt prompt a shift in the way these companies work in the future and the face of the gig economy may well be affected.   For now, those Uber drivers not a party to this litigation will have to either litigate themselves and/or at least threaten to litigate in order to recover what is owed to them.   Unions may well assist also but it is unlikely that Uber will automatically rectify matters and give drivers the money they are owed.

For assistance with this or any employment-related query, please contact our Head of Employment, Ilinca Mardarescu.

Employers with 50 or more employees who cannot work from home can now register for rapid lateral flow testing kits to distribute to staff.

What is rapid lateral flow testing?

Rapid lateral flow testing (LFT) is a means of testing people who show no symptoms.  It usually takes only 30 minutes and can be easily done at home or at a specialist LFT site.  

The method used is the same as the more traditional PCR test (i.e. a nose and throat swab) and then pacing the swab in a vial of liquid for 30 minutes before testing the liquid to see if the person has the infection.  Where the test comes up positive, the person is asked to confirm the test result with a standard PCR test.

LFT is not to be used for anyone with symptoms.  Anyone with symptoms is asked to attend a normal testing centre for the traditional Covid test.

It has been accepted that the LFT is not as accurate as the traditional PCR test.  However, making LFT widely available is considered to be key in assisting those who are asymptomatic know whether they have the virus (and thereby taking them out of circulation and risk of spreading the infection further by ensuring they self-isolate).  

Should employers sign up for LFT?

It is an employer’s duty to protect the health, safety and welfare of its employees.  Many jobs are unable to be carried out from home and for those LFT can assist the employer in discharging its duty.  Moreover, if an employer utilises the LFT wisely, it can protect its business from struggling to cope and averting all of its employees becoming affected.

Employers currently need to put in place measures to stop the risk of COVID spreading.  This includes social distancing, regular and thorough cleaning, masks and physical barriers and cleaning stations to name a few.  However, with LFT becoming more available, employers should consider also imposing strict “bubbles” within the workplace. LFT could therefore mean that where an employee tests positive, only that smaller bubble is at risk rather than the entire workplace.  

What if an employee refuses to take the test?

Employers should already have a COVID policy in place dealing with the measures all staff are required to take to keep the workplace safe.  The requirement for all staff to participate in LFT should be added to this and a further copy distributed to all staff.  This requirement would be considered a reasonable instruction by the employer (unless there are specific medical reasons for not doing so) and employees could face disciplinary action for refusing.  It is important to note that employees are also required to ensure the health and safety of not only themselves but those around them.  

For assistance with this or any employment-related area, please contact our Head of Employment, Ilinca Mardarescu.  

 

The ever-changing regulations regarding who has to self-isolate upon return from what country has thrown up many questions for businesses and individuals alike.

The list of countries from which you have to self-isolate is constantly changing and the decisions are often announced very quickly.  

The Department for Business, Energy & Industrial Strategy has issued new guidance for employees and employers on employment rights when self-isolating on return to the UK from a country subject to quarantine restrictions.

Currently, all travel corridors have been suspended effective 18 January 2021. The current, up to date information on travel quarantine rules can be found here.  https://www.gov.uk/guidance/coronavirus-covid-19-travel-corridors

If you arrive in England from anywhere outside the UK, Ireland, the Channel Islands or the Isle of Man you will need to self-isolate for 10 days.

Working from home

Where possible, employers should allow employees to work from home during the 10 day self-isolation period. 

Taking annual/unpaid leave

Employees may be able to take annual leave to cover the period of their self-isolation, subject to certain entitlement requirements.  Employers may also be able to tell their employees to take annual leave provided adequate notice is given.

Employees may also be entitled to take annual leave if they are forced to travel to deal with family or dependent emergencies. If that is not possible, employees should be allowed to take unpaid leave.

Where a new country liable for quarantine is announced

Employees should talk to their employer as soon as possible to discuss options. Clearly, the employer having a clear policy for all staff in such situations will be beneficial to both parties concerned.

Sickness

Employees will not be entitled to sick pay if they are required to self-isolate following travel abroad.  Sick pay is only available where an employee is actually ill and evidence of this is usually required by way of doctors’ notes.

Dismissal

When dismissing staff, employers must do it fairly. Valid reasons include capability, conduct or redundancy.  Even if employers have a valid reason, the dismissal is only fair if it’s a reasonable response in the circumstances and they follow a fair procedure. 

Dismissal should always be a last resort and employers should consider alternative arrangements first, such as agreeing with employees to take annual leave or unpaid leave. Where possible, employers should explore the option for the employee to work from home or to agree work that can be completed from home.  Employers who dismiss an employee because they have had to self-isolate following travel abroad may be liable for unfair dismissal.

A clear and detailed policy issued to all employees covering travel and restrictions will assist in such cases.  A policy would provide certainty to all parties concerned and will make it clear to employees what is to be expected if they are caught out by new restrictions.

For any assistance in creating a suitable Travel Policy for your business, please contact our Head of Employment Ilinca Mardarescu

Tesco, Asda and Waitrose all announced last week that they will deny entry to shoppers not wearing face masks (unless medically exempt). No doubt more will follow.

Additionally, we have all seen an increase in police challenging individuals as to why they are not wearing a mask.  Government guidance does state that the police can take measures if members of the public don’t comply with the law in relation to wearing masks.  However, members of the public are not required to carry with them any specific form of medical exemption certificate.

Shops can refuse to allow an individual to enter a store (which is private property) as long as that refusal is not discriminatory in any way.  Businesses have been spending money on ensuring the workplace is safe and secure for those who work in them and they have a general duty to protect the health and safety of its own staff as well as members of the public.  But what about those employees who refuse to wear a mask in the workplace?

Employers will need to tread carefully in mandating the wearing of a mask.   Indeed, a blanket approach could lead to claims of discrimination.  Where there are genuine medical reasons why employees are unable to wear a mask, they cannot be forced to do so.  Employers should generally already know about any medical conditions affecting their staff. It is good practice to ask, at the commencement of employment, about any on-going medical conditions in order to be able to effectively protect the health and safety of all of its employees.   It is also a good idea to include a clause in the contract of employment requiring employees to keep an employer updated as and when their medical condition changes.

Difficulties arise when there is a need to balance the health and well-being of all staff against those of one or two.  The majority of employees may be happy to wear and mask and may expect others to do so around them – they may have their own vulnerable family to consider.  I should be noted that employees have the right not to be pressured or abused in any way if they are unable to wear a mask.  In such situations, open communication with all parties is paramount.  A conversation should be had with those unable to wear a mask and consideration given as to what other measures can be put into place.  This could include moving them to another part of the business which is quieter or has less contact with others, ensuring social distancing is possible, utilising other protection methods such as Perspex barriers and asking those employees who cannot wear a traditional mask to wear a face visor instead.

A full COVID policy should be put into place in all workplaces, covering what is expected of employees in terms of extra precautions and safety measures to be adhered to.   For any assistance with this or any employment-law related topic, please contact our Head of Employment, Ilinca Mardarescu

ON 4th January 2021, the Prime Minister issued a statement urging everyone to stay at home. This new Tier 5, imposed nationally, has meant that all schools will be closed and people have been urged not to leave the house except for essential and specific reasons. This is much more akin to the first national lockdown which took place in March 2020.

But what does this mean for jobs and the workplace?

Guidance on what this means has been published by the government. This states;

You may only leave your home for work if you cannot reasonably work from home.

Where people cannot work from home – including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing – they should continue to travel to their workplace. This is essential to keeping the country operating and supporting sectors and employers.

Public sector employees working in essential services, including childcare or education, should continue to go into work.

Where it is necessary for you to work in other people’s homes – for example, for nannies, cleaners or tradespeople – you can do so.

Otherwise, you should avoid meeting for work in a private home or garden, where COVID-19 Secure measures may not be in place. Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. The risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely. Extra consideration should be given to those people at higher risk.

As previously, more information and detailed legislation will be published soon. The law, once passed, is due to take effect from the early hours on Wednesday. However, the new restrictions mean that people may not leave the house without a reasonable excuse and the police will have the power to enforce this.

We have all been here before. Thoughts of home-schooling again and memories of the last lockdown mean we may well dread this next lockdown. But businesses – and to a certain extent individuals – are more prepared for this type of lockdown than ever. We have done it before; we can do it again.

For any assistance with how this will affect you in your employment or business, please do get in touch with our Head of Employment, Miss Ilinca Mardarescu.

As of 1st December 2020, the ACAS Early Conciliation period has been extended to last for a set period of six weeks in all cases.

But who is ACAS and what is the Early Conciliation period?

ACAS is an independent public body that receives funding from the government.   It provides free and impartial advice to both employers and employees on issues relating to employment law including best practice, policies and assist with early settlement of claims.

For most claims which are brought in the Employment Tribunal, it is a requirement that the Claimant notify ACAS prior to issuing proceedings, of his/her intention to issue proceedings.  This is easily done by filing in a simple form on the ACAS website.

Once the Claimant has notified ACAS, the matter will be referred to an ACAS conciliator, also known as a conciliation officer.  The conciliation officer will contact the Claimant to explain the early conciliation process. They will check the information given on the form, discuss the matter generally and establish whether the Claimant wants to try to settle the dispute.  If the Claimant is open to negotiation, ACAS will contact the Respondent (the employer) to start the process of trying to reach a settlement.

Neither party are compelled to enter into negotiations and ACAS does not have the power to force participation in settlement discussions.  However, it is often a good idea for the parties to participate in the process seriously before matters proceed to a more formal stage. Once proceedings are issued at the Employment Tribunal, the parties have to adhere to the Orders given by the Tribunal and in the majority of cases legal costs will then start to be incurred. 

ACAS does not provide legal advice and cannot advise either of the participants on what to do or what is reasonable in terms of negotiating a settlement.  For this reason, it is advisable for parties to obtain their own legal advice on the strength of their case during this process.  Knowing the likelihood of success is an important factor when negotiating a settlement.

Once the six week period has passed, ACAS will issue a certificate to the Claimant to confirm they were notified of the claim as requiered.  The certificate has a number on it which needs to be quoted on the Claim Form (ET1) when issuing proceedings at the Employment Tribunal. 

For any assistance with the Early Conciliation process or other employment-related matter, please contact our Head of Employment, Ilinca Mardarescu.