- From 1 July 2022, registered nurses, occupational therapists, physiotherapists and pharmacists can legally sign “fit notes”.
The significant expansion of the categories of healthcare professional who can certify absence will undoubtedly ease pressure on GPs which should be positive for employers, given how long employees can sometimes wait to be assessed by their GP before returning to work. It will hopefully also result in decreased presenteeism. Some employers have however raised concerns that the change will result in the inappropriate issue of fit notes to employees, which may trigger an increase in employer-referred occupational health or medical assessments. Meantime, employers should ensure that those in HR roles are aware of the change and consider whether any changes require to be made to sickness absence reporting policies.
- Long-COVID held to be a disability
In the case of Burke v Turning Point Scotland a Scottish Employment Tribunal has held that an employee suffering from symptoms of long-COVID was disabled for the purposes of the Equality Act 2010. This non-binding Employment Tribunal Decision does not mean that every long-COVID sufferer will be disabled; each case will turn on its own facts. However, this case serves as a warning to employers that cases involving employees with long-COVID should be dealt with carefully, particularly if dismissal is contemplated, and that consideration should be given to obtaining Occupational Health guidance on what reasonable adjustments can be made.
- If you engage workers who only work part of the year, you will need to review your approach to calculating holiday pay.
Currently, many employers use the ‘percentage method’ of calculating holiday entitlement for part year workers, as set out in the (now defunct) ACAS Guidance on Holidays and Holiday Pay at p 6 :
What leave do casual workers get?
If a member of staff works on a casual basis or very irregular hours, it is often easiest to calculate holiday entitlement that accrues as hours are worked. The holiday entitlement of 5.6 weeks is equivalent to 12.07 per cent of hours worked over a year. The 12.07 per cent figure is 5.6 weeks’ holiday, divided by 46.4 weeks (being 52 weeks – 5.6 weeks). The 5.6 weeks are excluded from the calculation as the worker would not be at work during those 5.6 weeks, in order to accrue annual leave.
However, in the recent Harpur Trust v Brazel decision, the Supreme Court has confirmed that the entitlement to 5.6 weeks’ holiday applies to all workers in full, without pro-rating. In other words, leave entitlement is fixed regardless of the number of hours, days, or weeks that one actually works. It follows that part-year workers’ holiday entitlement ought not be calculated using the percentage method, even if that results in part-year workers receiving disproportionately more paid leave than full-year workers.
If you have any questions regarding the issues raised above or would like some general employment law advice, please get in touch.
