Be Aware – August 2022
Healthcare Professionals to be able to provide fit notes
This July sees other Healthcare Professionals such as Pharmacists, Nurses, Occupational Therapists and Physiotherapists, also being able to provide fit notes. It means that GPs alone will not have to bear the burden. The reason behind the change in the law is to assist GPs, who are very over-burdened, with what is often a paper exercise for them.
This is to be welcomed, but if there is a concern it is probably that widening the category of professionals who can give fit notes, to those who perhaps have less of an overview of the employee’s health, might only heighten the trend that the health care professional will always sign off the employee, if they request it, without a real examination of whether employees are, really, too ill to work.
Can an employee obtain an ACAS Early Conciliation Certificate after lodging an ET1, and still proceed to a hearing?
No, held the Employment Appeal Tribunal (EAT) in Pryce v Baxterstorey Ltd.
It is a requirement of Employment law that an employee must attempt to resolve any dispute via mediation with ACAS. This early conciliation is designed to avoid proceedings where possible. If unsuccessful, ACAS issues an early conciliation certificate number and the matter proceeds to trial.
in Pryce v Baxterstorey Ltd. the Claimant had lodged their claim on the day of dismissal and before obtaining an early conciliation certificate number. This was obtained and provided a few days and added to the clam form. At trial this was spotted by the judge and the claim was rejected on the grounds that the Claimant had not complied with the requirements of bringing a claim and therefore the Tribunal had no jurisdiction. The Claimant appealed.
Rejecting the appeal, the EAT held that:
The Claimant’s email resending the early conciliation certificate number only could not be considered a “re-presentation” of the claim as Rule 8 of the ET Rules requires a completed ET1 be sent to the Tribunal when representing a claim; and there was no jurisdiction to waive the requirement to re-present the claim since, if there was, it would undermine the express statutory provision in section 18A(8) of the ETA 1996.
This is a clear statement by the EAT that employees must comply with the requirements when presenting a claim.
“I run a small body repair MOT workshop. I sometimes have to leave my technician working on his own when I am out of the business, is that okay? Is there any law in this area?”
Employers who have employees who are likely to be working on their own need to carry out a risk assessment. The Health and Safety at Work Act 1974 ensures a duty of care on employers to ensure the health, safety and welfare of their employees. The Management of Health and Safety at Work Regulations also require employers to carry out a risk assessment.
In the above situation a bodyshop or MOT testing area is likely to be a relatively hazardous environment. The employer is required to consider the risks posed to a lone worker in such an environment. Where a risk assessment shows it is not possible for the work to be done safely by a lone worker, arrangements for providing help or backup should be put in place. A risk assessment might include that it is not safe for one person to work alone, examples include working in confined space or work involving electrics or other dangers where two people might be required to be present.
Precautions should be planned for foreseeable emergencies e.g. fire, equipment failure, illness and accidents etc.
The following questions should be asked by the employer:
- Does the workplace present a special risk to the lone worker?
- Is there a safe way in and a way out for one person? Can any temporary access equipment which is necessary, such as portable ladders or trestles, be safely handled by one person?
- Can all the plant, substances and goods involved in the work be safely handled by one person? Consider whether the work involves lifting objects too large for one person or whether more than one person is needed to operate essential controls for the safe running of equipment.
- Is there a risk of violence?
- Are women especially at risk if they work alone?
- Are young workers especially at risk if they work alone?
- Is the person medically fit and suitable to work alone?
- What happens if the person becomes ill, has an accident or there is an emergency?
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us in 01788 225 908 at any stage for advice and assistance as appropriate.