Top 5 Employment Law Issues For Care Homes

By Vanessa Latham, Partner at Keoghs (www.keoghs.co.uk)

Employment law is ever-evolving and it can be difficult to keep up to date with all the changes that affect care homes. Vanessa Latham, Partner at Keoghs, provides a summary of the top five employment law changes that are expected to affect the care sector in 2023.

Sexual harassment
The Workers Protection (Amendment of Equality Act 2010) Bill is expected to be passed shortly: this will make employers liable if their employee is harassed by a third party (such as a service user or supplier) and create a duty on employers to take all reasonable steps to prevent sexual harassment of employees in the course of their work. This is likely to be relevant to those working in the care sector who may visit service users in their own homes or who may have to deal with individuals who, by the nature of their illness, demonstrate inhibition and inappropriate behaviour.

The forthcoming changes emphasise the importance of having anti-harassment policies, which provide guidance to staff on what to do if they feel they are being harassed; provide training to all staff; and reinforce the need to take immediate action if a member of staff reports harassment.

Retained EU Law (Revocation and Reform) Bill
The end of 2023 was due to be the deadline for the UK to abolish all EU law not specifically being retained in UK legislation. This includes a wide range of employment legislation such as the Working Time Regulations and Agency Worker Regulations and was expected to have a huge impact on employment law.

In a complete U-turn, the Government has now announced that all EU law will remain enforceable unless specifically repealed by the end of the year. A list of the laws to be removed has been published and does not include anything of significance for employment law, which means that nothing should change at the end of the year. However, the Government has also announced the intention to make changes to holiday pay and remove the need to keep records of working hours, which suggests that the Working Time Regulations at least will be subject to change in the future.

Menopause
There has been increased public focus over the past few years on the challenges faced by women experiencing the menopause. A number of recommended changes were made in a report by the Women and Equalities Committee of the House of Commons earlier this year, which included adding menopause to the list of protected characteristics in the Equality Act 2010 (alongside race, sex, disability, age, etc.).

Most of the proposals have not been taken up by the Government but sensible employers will recognise the need to support menopausal women, not least because for many women it could constitute a disability which gives them protection from discrimination and places a duty on employers to make reasonable adjustments. Employers should give consideration to having a menopause policy, encouraging women to seek support, making adjustments to their working practices, and providing training to managers on how to support a woman going through the menopause.

Neonatal Leave
It is expected that new rights will be announced for parents of babies needing neonatal care, following the coming into effect of the Neonatal Care (Leave and Pay) Act 2023. The Act allows the Secretary of State to introduce regulations on parental rights and it is anticipated that these will include the right to up to 12 weeks neonatal leave and statutory neonatal pay. The precise details have not yet been confirmed but are expected to be announced shortly.

Carers Leave
Another forthcoming change arises from the Carer’s Leave Bill which is about to become law, having been passed by Parliament at the end of May. This allows employees who provide voluntary care to others to take unpaid leave in half or whole days of up to one week per year, regardless of how long they have been employed. Employees will not need to provide any evidence that they are required to provide care and can self-certificate. It is hoped that this will help employers retain staff who struggle to balance their caring responsibilities with their work, although some have questioned whether one week of unpaid time per year will have much impact. The new rules are expected to come into force in 2024.