Employment law for private practice – 2020 roundup and what to expect in 2021
First published in Independent Practitioner Today in April 2021
There have been notable changes to employment law in response to the Covid-19 pandemic and some other developments which doctor employers in private practice should be aware of. Lucy Miles and Kalani Bogahalande report.
Three employment law changes that have occurred in the past year are:
- In April 2020, all workers were given the right to receive a written statement of terms and conditions on the first day of work or before.
- The Parental Bereavement (Leave and Pay) Act 2018 took effect in April 2020. Employees who lose a child under the age of 18 or suffer a stillbirth after 24 weeks are now entitled to two weeks’ statutory leave. If an employee has over 26 weeks of service, they are entitled to Statutory Parental Bereavement Pay.
- For calculating holiday pay, regulation 16 of the Working Time Regulations 1998 was amended in April 2020 to increase the reference period for determining an average week’s pay for workers without fixed hours or pay, from 12 weeks to 52 weeks.
There were also a few notable decisions in relation to employment status and self-employment.
In Community Based Care Health Ltd v Narayan, the Employment Appeal Tribunal (“EAT”) found that a GP registered with a company providing out-of-hours medical services to the NHS, who had worked regular shifts at a single establishment for 12 years, had been correctly characterised as a “worker”, even though there was no mutuality of obligation between the parties and where she provided her services through a limited company. The EAT determined that a limited company could not satisfy the strict qualification and performance requirements imposed by the NHS nationally. This decision, which is potentially significant across the healthcare sector, has been appealed to the Court of Appeal and is expected to be heard in 2021.
Uber BV and others v Aslam and others was heard by the Supreme Court in July 2020. The Court held that Uber drivers are workers and are therefore entitled to holiday pay and the national minimum wage. These cases demonstrate the general direction of travel towards staff being workers despite what the contractual documents say.
The Covid-19 pandemic featured at the front and centre of employment law changes in 2020, as the law had to evolve rapidly in line with the various Government decisions.
Private practice employers must be conscious of the legal requirements relating to self-isolation because requiring staff to attend work whilst they are required to isolate can result in a fine of up to £10,000. It is therefore important to ensure that:
- staff are fully aware of their obligations;
- they do not feel any pressure to attend the workplace; and
- accurate records are kept in respect of those who have displayed symptoms.
Employers are still able to furlough employees through the Coronavirus Job Retention Scheme. Furloughed staff are entitled to receive 80% of their currently salary, capped at £2,500 provided that the employee was on the payroll on 30 October 2020.
Employers can now bring back employees who were previously furloughed on a part time basis. Employees who are on maternity, paternity, or long-term sick leave can also be furloughed. When selecting individuals to be furloughed, objective criteria must be used to avoid any potential for discrimination.
Private medical practices are able to utilise the CJRS scheme, although it is not available to self-employed individuals, who would need to use the Self-Employed Income Support Scheme.
Looking forward to 2021
We expect the Covid-19 pandemic and Brexit to continue to take centre stage for employment law in 2021.
From 1 January 2021, the transitional arrangements in the withdrawal agreement came to an end. The new immigration laws which apply to EU citizens are expected to have a significant effect on the healthcare sector, and medical practices will need to ensure their recruitment processes are updated to ensure their pre-employment checks are compliant.
The ability to engage professionals from EU countries is likely to be impacted because EU nationals who want to come to the UK to practice but had not done so, nor had their professional qualifications recognised in the UK, before the end of December 2020, will now be subject to visa requirements under a new points-based system and their qualifications will no longer be automatically recognised. Practices will now need to have a sponsor licence and engage doctors on an employed, rather than self-employed basis (with associated costs and compliance responsibilities).
Brexit and the impact of COVID are expected to financially impact most businesses for the foreseeable future. Ultimately some organisations will need to make contingency plans should restructures and downsizing become necessary.
It will therefore be important for employers to keep up to date on the laws around redundancy as changes may be introduced this year. For example, it is anticipated that the current protections against redundancy for pregnant women will be extended. At present, those on maternity leave who are at risk of redundancy must be offered suitable alternative roles in advance of others, but this protection ends once the individual returns to work. The anticipated changes will mean that the protection will start from the date the employee informs her employer that she is pregnant and will last for 6 months after she returns to work from maternity leave. This extended protection is also anticipated to be available to those taking adoption leave and shared parental leave.