Key employment law updates | June 2022

Sick notes to be certified by other healthcare professionals from July 2022

Currently, if an employee is off work for more than seven days, they are required to submit a doctor's "fit note" to their employer to evidence their sickness and, theoretically, provide relevant advice on how the employee can be supported to return/remain in work.

Pharmacists working in general practice or hospital settings (along with nurses, occupational therapists and physiotherapists) are to begin legally signing/certifying sick leave certificates from 1 July 2022. This is under new expected legislation to allow a wider range of healthcare professionals to certify "fit notes", therefore freeing up GPs to focus on more complex work and easing pressure on surgeries. Community pharmacists will not be able to issue fit notes signing patients off work under these planned legal changes, as they will not have access to patient information/notes to make a full assessment, as appropriate.

Four-day working week trial

A six-month trial of a four-day working week began in the UK in June, with over 70 businesses taking part. Businesses are participating across a variety of industries and the trial will seek to establish whether no change in full-time pay for 80% of working time will affect productivity levels. There are also other considerations, such as whether it may promote workplace equality, for example in favour of people with childcare responsibilities, who are predominantly women. A four-day working week may also assist with recruitment and retention of talented employees.

There are, of course, potential pitfalls to a four-day week, such as increased pressure (and decreased productivity) in the shorter week and issues for certain industries where a five (or more) day cycle is necessary to meet client/customer demand.

If you are looking to trial or adopt a four-day week there are certain considerations you should be aware of, such as:

  • Changes to contracts – switching to a four-day week involves contractual changes for the workforce and amends to contracts will require agreement between the employer and each employee.
  • Part-time employees – employers need to consider the impact of a reduced working week on those working part time as they cannot be treated less favourably than full-time employees. If there is no respective deduction in hours ratio to pay, this would be less favourable treatment so proper calculations need to be taken.
  • Working hours – employers need to be mindful of whether a reduction in working days results in longer working hours on the remaining days.

The four-day week is being trailed to test whether reduced levels of burnout and higher quality of life due to more free time result in better business output. It remains to be seen whether this trial will produce results that are both beneficial to employees and employers, although studies elsewhere in the world have shown some positive effects.

No plans for the menopause to be classed as a protected characteristic

The Government has announced that it has no current plans for the menopause to be classified as a protected characteristic in its own right under the Equality Act 2010 (the "Act"). Reportedly, creating a new protected characteristic with the menopause does not align with the purpose of the Act, which is intended to create protection across all relevant areas.

The Government has explained that its main objective is to ensure women going through the menopause are treated fairly at work, by making employers aware of challenges faced by these women and their current legal obligations (including those under the Act). There is a growing body of case law relevant to the menopause, and the Government plans to consult with the Equality and Human Rights Commission and Acas to assess whether existing guidance for employers is adequate.

As detailed by Acas, the menopause is not specifically protected under the Act; however, if an employee or worker is disadvantaged and treated less favourably because of menopause symptoms, this could be considered discrimination if related to a protected characteristic (e.g. age, disability, gender reassignment or sex). Therefore, employers should ensure there are adequate procedures in place and support available to help staff affected by the menopause and should try to resolve any issues early on, prior to any potential legal action being taken.

Union strikes – impact set to be reduced by new legislation

The Department for Business, Energy and Industrial Strategy and the Department for Transport has introduced new legislation to allow businesses to use agency workers to carry out duties of employees engaged in industrial action. Currently, trade union laws do not allow this but the new statutory instrument will allow this for the operation of public services, particularly in view of the recent disruption to train services. Agency workers will still need to have the necessary skills and/or qualifications to meet health and safety rules.

The Government is also intending to raise the cap on maximum damages that the court can award against unions who arrange an unlawful strike action for up to £1 million.

Continued focus on "fire and re-hire"

During a parliamentary debate on 15 June 2022, it was confirmed that the draft Statutory Code of Practice on dismissal and re-engagement (or "fire and rehire") will be published for consultation this summer. The Code was first announced in March 2022. For further details about what it will address, please see our May 2022 update.

The subject of "fire and re-hire" is currently a hot topic and a clear focus for the Government. Employers planning to change terms and conditions should, before taking action, seek legal advice, and be mindful of the risks, including the potential reputational damage and impact on employee relations.