Fit notes

The pandemic has highlighted how difficult it can be to get timely access to GPs, not least for the purposes of them signing fit notes. A potential solution to this is now available since from 1 July, the range of health professionals who can sign fit notes has widened to include registered nurses, occupational therapists, physiotherapists and pharmacists. HR teams and those dealing with sickness absences  should be made aware of this change so that they do not incorrectly dispute fit notes. They should also be prepared to verify that the person signing the note does indeed fit into one of these categories as there is now greater scope for confusion.

Forstater wins gender critical discrimination claim

Maya Forstater has succeeded in her belief discrimination claim, following unfavourable treatment after she expressed gender critical views online. It took an appeal to the EAT to establish that her views were indeed protected, an employment tribunal having initially ruled that her views were not worthy of respect in a democratic society. An employment tribunal has found that she was not offered an employment contract and her visiting fellowship contract was not renewed because of her gender critical views. Her professional details were also taken down from the website of the organisation, which was an act of victimisation. 

This is a significant decision because of the vehemence of views held in many workplaces, about the potential clash between women's rights and gender ideology, as well as the importance of free speech. Having gender critical views is not only protected, employers cannot necessarily compel employees or workers to adopt their own stance on gender ideology or subject them to a detriment for expressing their own divergent views. The way in which Ms Forstater had expressed her views came under scrutiny as employers may be able to legitimately argue that they have treated someone in an unfavourable way due to their objectionable conduct, dissociable from their beliefs. However, in this case the tribunal found that Ms Forstater's views were not objectively offensive, despite her having used mocking and provocative language to illustrate her point. The reason for her treatment was because of her beliefs.

The case demonstrates how employers should not be quick to withdraw support or withhold opportunities to those who step outside of favoured ideologies. Employers may wish to review their diversity and EO policies in light of Forstater, to ensure that they do not purport to favour the interests of one group at the expense of another. It is noteworthy that Ms Forstater was protected despite being a contractor.  The definition of being 'in employment', for the purposes of the Equality Act 2010, is wider than the definition as it is commonly understood.

Immigration:  Update on Changes to Right to Work – first approval of Identity Service Providers (6 June 2022)

In March 2022 we reported that from 6 April 2022 all UK employers must conduct online right to work checks for employees who hold Biometric Residence Permit cards (issued to individuals holding a visa of six months or more, Biometric Residence Cards (issued to non-EEA family members of an EEA citizens) and Frontier Worker Permits. See our article at New right to work check rules for UK employers (taylorwessing.com). In addition, from 6 April 2022, employers are allowed to conduct checks, and maintain a statutory excuse against illegal working, by using approved third party Identity Service Providers (IDSP) to verify a British or Irish national's right to work in the UK. The IDSP must be certified to the required standard and provide appropriate training and guidance to their staff. 

On 6 June 2022, the government finally announced the first certified IDSP, a collaboration between Yoti and the Post Office. See here. This means that employees can now choose whether to engage with an IDSP for certain of their right to work checks. It should be remembered that employers are still able to access the adjusted right to work check regime (allowing virtual, rather than in person, checks) until 30 September 2022. During this period employers can establish an arrangement with an IDSP and change their right to work check processes. It remains to be seen whether this will be taken up or whether there will be a further extension to adjusted checks.

Pensions: CDC - more developments!

We wrote about a new type of pension arrangement called collective defined contribution (CDC) and how this might be appealing to employers looking to provide something more than a traditional defined contribution arrangement, but who do not want to take on the risks and regulatory burden of a defined benefit scheme.   The Pensions Regulator (‘TPR’) has now laid in Parliament the Code of Practice referred to in the article for authorising and supervising these schemes with a view to it being finalised in time for CDC trustees to be able to apply for authorisation from 1 August 2022.   By way of reminder, the Code sets out how trustees can apply for authorisation and how TPR will use the statutory authorisation criteria to assess schemes both at the initial application stage but also in its ongoing supervision.   The Code is said to reflect regulations for CDC schemes that were passed in March 22.  This shows the gathering momentum behind these arrangements, and interest in them is surely set to increase if the Government follows through with making them available to schemes with multiple non-connected employers, as this would enable master trust providers to offer CDC.