The Social Care Sector: A look ahead to 2021

Howden Care HR partner, HR Solutions, have put together the following article specifically focusing on the social care sector and what is coming up in the year ahead from a people management perspective.

How will Brexit impact the Social Care Sector?

As a result of Brexit and the ending of the free movement of people, the way in which the UK recruits from outside the UK will significantly change.  For most sectors of the economy, the change will be manageable, albeit we'll see a new way of working.  However, the social care sector may see significant disruption from an employee resourcing perspective specifically regarding how they retain and recruit staff.

Retaining Employees who are EU Nationals

1. If you currently employ EU nationals and they wish to continue working in the UK, they must apply to the EU Settlement Scheme.  They have until 30 June 2021 in which to apply and is something they must decide and cannot be required to do.  It would be reasonable however for you to understand from your employees’ their position in terms of whether they are going to be applying as this will be essential for any resource and budget planning next year.
2. Planning for this will be key.  Whilst employers are not able to require employees to apply to the EU Settlement Scheme, it is likely to be reasonable to enquire with your employees what their intentions are to improve your sense of security in your staffing levels and to help plan.   
3. Because of this stipulation, where you employ a high level of EU workers, then it is recommended that contingency arrangements are put in place to meet demand, or to moderate customer expectations, if staffing levels deplete quicker than they can replace staff. 
4. Those who do not apply to the EU Settlement Scheme by the deadline of 30 June 2021 and continue to work in the UK will risk being prosecuted for the offence of illegal working.
5. Where individuals may be personally liable, it has been confirmed that employers will not have to retrospectively check the right to work documentation of existing employees, which suggests employers may not be liable for a fine, even if their employee should lose their right to work status in the course of employment.

Recruiting in 2021

From 1 January 2021, EU nationals who are new to the UK who wish to live and work in the UK for the first time, are required to apply to work through a new points-based immigration system. 

The existing visa schemes for recruiting non-EU nationals, will be consolidated into this new points-based system which will then enable EU and non-EU nationals being treated equally in respect of coming to work in the UK.

Types of Visa to work in the UK

There are now several types of visa in which a non-UK national can come to the UK to work, however, when it comes to the social care sector, the visa options will be limited, due to the eligibility requirements.    

Unfortunately, the reality will be that much of the care sector will be significantly hampered by the new points-based immigration system because even though the main visa type that is likely to be used will be the skilled worker visa, many care roles will not qualify, due to the following stipulations:

1. The skilled worker visa requires the job role to be at a certain level of skill, based on the Government’s standard occupational classification codes.
2. The skilled worker visa requires the job role to meet the required salary level.
3. Even if the job role met the required skill and salary, the applicant would need to score 70 points through the points system.  These 70 points would be earnt through several characteristics.
   • The job offer must come from an approved sponsor.  This means the recruiting company must have applied to become a home office sponsor and hold a license to be able to recruit.  There are fees associated to doing this.
   • The applicant must speak English at a required level, which they will be assessed during their visa application process
   • The job offer is one of those in a shortage occupation
   • The salary is somewhere between £23,040 and £25,600, or at least the going rate for the profession (whichever is the highest)

Standard Occupation Classification Codes

The Government has set out its list of standard occupation classification codes.  These are codes which the job offer must align too, and it is important to regularly check the list as the Government reviews and updates the list periodically.  Rather than taking a job title alone to determine if your job role matches, it is recommended that recruiters check the online coding tool, available from the Office for National Statistics (ONS).

https://onsdigital.github.io/dp-classification-tools/standard-occupational-classification/ONS_SOC_occupation_coding_tool.html

https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-skilled-occupations

There is also guidance in terms of the going rate of pay which is important when determining whether the job role meets the eligibility criteria.

https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-skilled-occupations

Currently, when you search for social care, it covers roles such as social services managers and directors (see code 1184 on the list).  Residential, day and domiciliary care such as care managers, nursing homeowners and residential managers (see code 1241).  Certain level of care worker may be eligible, but it would be limited to senior care assistants and senior carer (see code 6146).

As you can see, the limited number of health and social care job roles that are included are those which are of a senior level.  These job roles that are included in the list, will therefore be eligible for the scheme (assuming all other qualifying requirements are met) and so to recruit into them from outside of the UK, the employer will need to be a home office sponsor, and the applicant must be in receipt of the skilled worker visa.

Health Care Visa

In 2020, the Government launched the Health Care Visa aimed at qualified doctors, nurses and similar health professionals trained to a recognised standard.  It was extended to include eligible applicants working in the social care sector and was managed under the Tier 2 (General) visa.  The aim has been to make it easier and quicker for the best global health professionals to work in the NHS, NHS commissioned service providers and in eligible occupations in the social care sector.

However, from the launch of the new points-based immigration system on 1 January 2021, the visa forms part of the skilled worker route, therefore, the applicant must meet all the requirements relevant to this route as explained above. 

The Government’s Announcement

When the Government announced in July 2020 the launch of the new health care visa, they also explained why the visa/skilled worker route would only be for eligible roles.  The intentions are for a widespread focus on training and introducing a proper career structure to provide opportunities in this sector, making it an attractive profession for prospective carers.  This will enable the care sector to recruit domestically within the UK.  The UK’s immigration advisory body, who sets the immigration salaries have also confirmed that the immigration system is not the answer to the UK care sector recruitment challenges.

Right to work checks

As part of the transition to using a new points-based immigration system, there is a 6-month period in which employers will be able to continue to accept passports and national identity cards as part of their usual right to work checks.  This will be in place until 30 June 2021, after which, EU nationals who do not have settled or pre settled status, will require a visa to work in the UK, in the same way as non-EU nationals.

Covid-19 Financial Support: Adult Social Care Infection Control Fund

This fund aims to help those operating in the care sector to reduce the need for staff movements between sites.  It is available to those operating in residential settings as well as community care settings and can include those who do not have a contract with local authority.

The Government expects the grant to be fully spent on infection control measures, for which they have defined and will be in place until 31 March 2021. 

One example of how the grant could be used is to ensure that staff who are isolating in line with government advice receive their normal wages and do not lose income whilst doing so.  For instance, the grant could be used to uplift the pay of staff who are self-isolating and who ordinarily would have only received SSP.  You can read more about this scheme in the Government’s “Adult Social Care Infection Control Fund – round 2 guidance.

 https://www.gov.uk/government/publications/adult-social-care-infection-control-fund-round-2/adult-social-care-infection-control-fund-round-2-guidance

In terms of statutory sick pay, if an employee cannot work because of Covid-19 they may be entitled to SSP if:

• they or somebody they live with has coronavirus symptoms or tested positive
• they have been told to self-isolate by Test and Trace
• somebody in their support bubble has tested positive or
• they have been advised by a Doctor or healthcare professional to do so before going into hospital for surgery or a procedure.

Covid-19 Vaccinations

We have a breakthrough with Covid-19 with the roll out of a vaccine, and we will see it rolled out over several months, targeting the most vulnerable first.  The Government have not made it mandatory to get the vaccine, so it will be a personal choice as to whether somebody choses to receive it or not.

Within social care, relying on employees taking part in the vaccination programme is going to be vital, however the question of whether an employer can force employees, especially those who are classed as key workers brings risk.

The law

Currently, the Government has not made any statutory provision for the vaccine to be mandatory.  To attempt to force employees to take the Covid-19 vaccine risks the actions being considered unreasonable and therefore unlawful in an unfair/constructive dismissal claim.   However, these are unprecedented times, and the law has not been tested so it is difficult to give a definitive position.  Furthermore, there are several pieces of employment legislation that the matter would need to be considered against.

At this early stage and given the Government is not forcing people to become vaccinated, on balance it would seem as though it would be difficult for an employer to force an employee to get vaccinated.  How can an Employer require an employee to take the vaccine if the Government are not requiring people take it?

This is a very sensitive matter, and much will depend on the facts in each case, along with Government guidance, that will hopefully be published.  Highlighted below are the various pieces of employment legislation that must be considered, however, ultimately, it will be for a tribunal judge to assess whether any dismissal or resignation is lawful or not.  

1. Data Protection Act 2018 - This will be a key consideration as consent will need to be gained by the employee.  How do you deal with the practical issue of an employee not giving their consent as you cannot physically force somebody to do it?

2. Human Rights - Given there is no legal basis for mandatory vaccines since the Government have not brought in any statutory provision, it is doubtful therefore that requiring employees would be compatible with the Human Rights Act.

3. Equality Act 2010 - In terms of the Equality Act 2010, there are questions around whether a refusal to be vaccinated is linked to a belief.  There are religious groups that disapprove of vaccinations on the grounds that they interfere with divine providence.

4. Health and Safety at Work Act 1974, section 2 - Section 2 of the Act requires an employer to take all reasonably practicable steps to reduce workplace risks to their lowest level.  Whether it is possible to form an argument that by requiring employees to take the vaccine, the organisation is conforming to their responsibilities under health and safety legislation is not clear. 

5. Health and Safety at Work Act 1974, Section 7 - Section 7 of the Act makes the failure to take all reasonably practicable steps to reduce workplace risks to their lowest level a criminal offence.  It also places employees under duty to co-operate with their employer as is reasonably necessary.  However, as already mentioned, this is not straightforward since the Government have announced that it is not to be mandatory.  So again, we need to await further clarity

Therefore, whilst there may be legal routes to argue a case for requiring employees (under Health and Safety law), we do need to wait guidance and perhaps for the matter to be tested before we can take a clearer position on it.

You hope that all employees want to take the vaccine voluntarily, because of the nature of their role and to help them return to a more normal life personally, but there may be some people who remain cautious and unsure.    You can read specific Government guidance on the vaccine for healthcare workers and those operating in care homes in the Governments publications.

https://www.gov.uk/government/publications/covid-19-vaccination-guide-for-healthcare-workers/covid-19-vaccination-guide-for-healthcare-workers

https://www.gov.uk/government/publications/covid-19-vaccinations-and-care-homes-programme-launch/covid-19-vaccinations-and-care-homes-programme-launch

About the author

Victoria Templeton is the HR Knowledge Manager at HR Solutions, an outsourced HR and Health and Safety services firm offering employment related support and advice to businesses across the UK.

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