Employment Eye October 2023

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Welcome to October's round up of employment law developments and what they mean for employers. In this edition, we cover: Care and support workers and the Health and Care Worker visa Since December 2020, care workers have been eligible for sponsorship as skilled workers categorised as a health and care visa. Initially this was senior care workers but in February 2022, this was extended to all care and support workers. Read more The Miscarriage Leave Bill The Miscarriage Leave Bill is currently at its second stage of reading with Parliament. In this article, we look at the current position, the proposal and steps employers can take. Read more The NHS Staff Survey and the Sexual Safety Charter October sees the release of the 21st NHS Staff Survey. The Survey, whose results will be published next spring, is an annual NHS wide information gathering exercise and has been described as “one of the largest workforce surveys in the world”. For the first time, the survey will be asking staff about experiences with sexual harassment. Read more Gender identity rights and the interplay with gender critical beliefs The law around equality is continually developing, with case law emerging on philosophical beliefs and gender identity and how employers should approach the balancing of rights and views. To understand how this can work in practice, it is useful to consider a fictional scenario. Read more

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Care and support workers and the Health and Care Worker visa

Since December 2020, care workers have been eligible for sponsorship as skilled workers categorised as a health and care visa. Initially this was senior care workers but in February 2022, this was extended to all care and support workers. Statistics from the Home Office published in August 2023, show a 157% increase on the number of visas granted from 47,000 in June 2022 to over 74,000 in June 2023.

The Health and Care Worker visa offers a particularly attractive option to those sponsoring workers on this visa. It offers reduced visa fees and an exemption from the Immigration Health Surcharge; costs usually picked up by the employer. It also offers a fast track visa processing for entry into the UK and support of a dedicated team within the Home Office to process applications, all speeding up the process to on-board new employees and fill those much needed vacancies in our care sector. 

The inclusion of the care and support worker role in the Health and Care Worker visa has gone some way to alleviating the issues the industry has with filling these vacancies. Recently, the Government made a further concession for those on a Health and Care Worker visa so that there was no restriction on the number of hours for supplementary work a visa holder could undertake. However, this concession ended on 27 August 2023.

Conservative MP Jonathan Gullis recently spoke to Sky News and mentioned that there had been a call to close the Health and Care Worker visa for care and support workers. Mr Gullis reasoned that with over one million unemployed and almost a quarter of a million on sickness benefits who are keen to get back to work that the answer lies in making the industry more attractive to settled workers.

But to make it more attractive, this is likely to mean increasing wages. The majority of the industry relies heavily on external funding and unless that is increased, there is little (if any) scope to increase salaries. Those that rely on Government funding has seen this cut year on year which means there is no scope to increase wages.

Reliance on the Health and Care Worker visa to fill vacancies is likely to continue and despite calls for a review it is unlikely that the Government will take the drastic step to close this route for the foreseeable future.

 

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The Miscarriage Leave Bill

The Miscarriage Leave Bill is currently at its second stage of reading with Parliament.

The current position

An employee who experiences the loss of a pregnancy after 24 weeks (at which point it is considered to be a stillbirth) has the legal right to take two weeks of parental bereavement leave. However, for employees who suffer pregnancy loss in their first 24 weeks of pregnancy, there is no legal right to receiving paid leave for grieving the loss of a pregnancy.

Although some organisations have recognised the pressing need to implement their own miscarriage leave policies, legislation is still required in this area to protect individuals who suffer pregnancy loss within the first 24 weeks of pregnancy.

The proposal

If the Miscarriage Leave Bill is successful in becoming law, it will create a statutory right of three days’ paid leave for parents who have suffered the loss of their baby within the first 24 weeks of pregnancy. This will also include for ectopic and molar pregnancies.

Although there will be some wait time until the bill becomes law, the wellbeing of employees is increasingly becoming a paramount concern for many employers and there are several steps employers can take to support pregnancy in the workplace irrespective of the bill’s legal status.

Steps employers can take

1. Employers do not need to wait for the bill to become law, employer can still offer employees paid bereavement leave. As an organisation, this will demonstrate commitment to employee wellbeing but also is likely to foster an inclusive workplace culture.
2. If paid bereavement leave cannot be offered, employers may wish to consider offering flexible working arrangements where appropriate or adjustments to help support those who are returning to work following a pregnancy loss, e.g. a phased return.
3. Provide training on pregnancy loss, particularly for those with line management and/or HR responsibility, in order to better equip them in understanding pregnancy loss and supporting colleagues who may have experienced pregnancy loss with compassion and empathy. This will help encourage employees who have suffered pregnancy loss to communicate and open up to their colleagues and managers and in turn ensure that management can offer their support and assistance.
4. Develop a workplace policy supporting employees experiencing pregnancy loss that recognises the impacts that this can have. The policy should detail the support which the organisation provides and signposts relevant internal and external support services available, including: existing employee wellbeing and mental health assistance programmes, private counselling, specialist bereavement support and baby loss charities and groups. Implementing such policies will also protect employers from receiving potential pregnancy, maternity and sex discrimination claims.

How we can help

For advice on how to implement a framework on miscarriage leave policies, our Employment team can help with drafting policies for this, as well as providing training on discrimination, workplace culture and unconscious bias.

 

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The NHS Staff Survey and the Sexual Safety Charter

October sees the release of the 21^st NHS Staff Survey. The Survey, whose results will be published next spring, is an annual NHS wide information gathering exercise and has been described as “one of the largest workforce surveys in the world”.

For the first time, the Staff Survey will ask staff about experiences of sexual harassment.

This follows publication on 4 September of a new Sexual Safety Charter for organisations working in health care.

Scale of the challenge

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature, or connected to sex, that:

• Violates a person’s dignity; or
• Whose purpose is to create an intimidating, hostile, degrading, humiliating or offensive environment; or
• Whose effect (regardless of intention) is to create such an environment.

Sexual assault would also be harassment and would amount to the most serious form of such harassment.

In May 2023, the British Medical Journal published the results of its research, covering 212 NHS Trusts and Foundation Trusts, that there had been more than 35,000 recorded incidents of sexual misconduct or sexual violence on NHS premises in England between 2017 and 2022. Of these, almost two thirds (58%) involved patients abusing staff. Rape, sexual assault and being touched without consent accounted for over 20% of the total number of cases reported.

At the same time, the report established that less than one in ten of the Trusts who had responded had dedicated policies for dealing with sexual assault and harassment, independent of general equality or disciplinary policies. Trusts who had such policies tended to report higher incidences of abuse suggesting that the existence of such policies enables greater reporting and that the problem is therefore more widespread than even the research suggests.

In a more focussed survey, research by the Psychology Department at the University of Exeter, published in a September 2023 article in the British Journal of Surgery, has identified the alarming statistic that 30% of female surgeons surveyed working in the NHS had been sexually assaulted in the previous five years. It also reported that:

• 29% of women had experienced unwanted physical advances at work:
• Over 40% had received uninvited comments about their body; and
• 38% had been the target of sexual “banter” at work.

The research suggested that when around colleagues, female colleagues witness and are targets of sexual misconduct at a significantly higher rate than male colleagues with almost 90% of women saying they had witnessed sexual misconduct at work in the past five years and 81% of men giving the same answer.

NHS Staff Survey

The survey results provide an overview of staff experience at any given time and are used to inform local; regional and national initiatives and decision making.

In 2023, the Survey will ask all those who work in the NHS employees, including for the first time bank workers, about sexual harassment and sexual assault experienced in the work place.

The new question asks “In the last 12 months, how many times have you been the target of unwanted behaviour of a sexual nature in the workplace? This may include offensive or inappropriate sexualised conversation (including jokes), touching or assaults”.

Sexual Safety Charter

The new question follows shortly after the publication on 4 September by NHS England of a new “Sexual Safety in Healthcare Organisational Charter” (NHS England » Sexual safety in healthcare – organisational charter).

The Charter highlights the right of all involved in working, training or studying in the healthcare system to be safe and to feel supported at work, and emphasises the responsibility of organisations across the system to work both individually and in partnership to tackle harmful; inappropriate and unwanted sexual behaviour in the workplace.

Although focussed on the healthcare sphere, the Charter contains principles that could serve as a touchstone for many other employers.

Signatories to the Charter commit themselves to adopting a “zero-tolerance” approach for all forms of such behaviour towards their workforce. As part of that commitment, organisations undertake to:

1. Actively working to eradicate sexual harassment and abuse in the workplace.
2. Promoting a culture that fosters openness and transparency, and does not tolerate unwanted, harmful and/or inappropriate sexual behaviours.
3. Adopting an intersectional approach to the sexual safety of their workforce, recognising certain groups will experience sexual harassment and abuse at a disproportionate rate.
4. Providing appropriate support for those in their workforce who experience unwanted, inappropriate and/or harmful sexual behaviours.
5. Clearly communicating standards of behaviour; including expected action for those who witness inappropriate, unwanted and/or harmful sexual behaviour.
6. Ensuring appropriate, specific, and clear policies are in place, including provisions for appropriate and timely action against alleged perpetrators.
7. Ensuring appropriate, specific, and clear training is in place.
8. Ensuring appropriate reporting mechanisms are in place for those experiencing these behaviours.
9. Taking all reports seriously and taking appropriate and timely action in all cases.
10. Capturing and sharing data on the prevalence (of such behaviour) and staff experience transparently.

As at 22 September 2023, 31 NHS Trusts; Foundation Trusts and Ambulance Trusts had signed up to the Charter.

Concluding remarks

The data collected so far suggests that sexual harassment is an issue which needs to be addressed within the NHS. The development of the Staff Survey and the publication of research helps to identify and understand the scale of the issue. However, the implementation of the Sexual Safety Charter has the potential to play a part in creating a safer and more equal culture within the NHS and potentially more widely in the workplace.

The response by NHS organisations to the Charter, in both the development of new policies and changed practices, will represent the opportunity to create new work cultures and lasting change.

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Gender identity rights and the interplay with gender critical beliefs

The law around equality is continually developing, with case law emerging on philosophical beliefs and gender identity and how employers should approach the balancing of rights and views.

To understand how this can work in practice, it is useful to consider a fictional scenario.

Managing co-existing rights and protections

Katie is a team manager. Andy (a trans man) has joined Katie’s team. Gordon has worked for the organisation for many years and works in Katie’s team.

Andy has spoken openly to colleagues about being trans and is an advocate for trans rights, sharing information on his LinkedIn.

Gordon recently posted (amongst other comments on trans rights) an article about trans athletes on his Facebook with the comment ‘what a load of crap’. Gordon is aware that Andy is trans, but has not made any comments on social media that target or reference Andy directly. Gordon does not voice these opinions in the office.

Katie received several messages from team members, sending screenshots of Gordon’s Facebook posts saying they are “uncomfortable” and she should “stop Gordon doing this”. 

Is Andy protected by the Equality Act?

Yes - gender reassignment is a protected characteristic under the Equality Act. Employees and workers proposing to undergo, undergoing, or who have undergone, a process to reassign their sex are protected from discrimination, harassment and victimisation.

Case law means protection is likely to also extend to gender-fluid and non-binary employees.

Is Gordon protected by the Equality Act?

Gordon must be able to show that he has an actual belief (not just an opinion) and case law has provided criteria that form a test for whether a belief will be protected.

Recent case law established that ‘lack of belief in transgenderism’ and ‘lack of belief that someone can change their biological sex’ can be protected beliefs. 

Therefore, it is possible that he will be protected from discrimination on the grounds of his belief AND the reasonable expression/manifestation of that belief.

Should Katie stop Gordon posting his views about trans rights on social media?

In short, while colleagues may not agree with Gordon’s views, and may find them offensive, he is allowed to hold this belief.

Case law has found that if an employee expresses gender critical beliefs in an unreasonable way or it prevents them from carrying out their job, for example, you can separate out the protected belief from the unreasonable or unlawful way the employee is expressing/manifesting it.

It would be unlawful for members of the team, or the employer, to discriminate against Gordon because he holds that belief if he is expressing it in a reasonable way. 

Katie is only able to take action if the expression of his belief amounts to unacceptable behavior or harassment or, for example, the use of abusive language, or it is detrimentally impacting on the organisation.

If Katie takes disciplinary action or stops Gordon posting she will likely be discriminating against him because of his philosophical belief. His posts are not themselves using abusive or using foul language and he is not targeting Andy.  

The situation would be different if Gordon were expressing his belief in an unreasonable way or if Gordon’s actions impact on either Gordon’s or Andy’s ability to do their job or it impacted on the running of the business.

Advice for employers

In the recent case of Higgs v Farmor’s School [2023], the EAT set out some guidance which may be useful. Essentially, employers cannot take sides in any apparently conflicting beliefs. That would be making a value judgement and if the belief is protected it may amount to discrimination. But, protection of belief does not give someone carte blanche to behave as they want.

For employers, there must be a balance, having considered the rights of all concerned.

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If you would like advice or assistance in relation to any workforce issues, or indeed any of the topics mentioned in this newsletter, please get in touch with a member of our Employment Team.