Tough HR Issues in the Care Industry

Managing employment issues in the care sector gets continually harder.  Employers not only need to comply with employment law but also the requirements set down by regulatory bodies. Care providers need to ensure they have the right staff with the right skills, qualifications, experience and knowledge in their employment at all times.

Key areas of compliance include:

Recruitment and Selection

Employers must have effective recruitment and selection procedures in place including:

• Pre-recruitment checks 
  Employees are only allowed to start work without restrictions once a full and satisfactory Criminal Records Bureau check has been received. Whilst the remodelling process for the Vetting and Barring Scheme takes place, employers can continue to use the ISA Adult First service (where applicable).  Employers must also ensure that staff are registered with the relevant professional regulator or professional body where necessary and are allowed to work by that body (ie National Midwifery Council for Nurses)
• Right to Work in the UK
  Procedures must be followed in line with the Immigration, Asylum and Nationality Act 2006.  This Act contains details on the  document checks that employers need to undertake at the point of recruitment and during employment in some circumstances
• The Equality Act 2010 and Pre Employment Health Questions 
  The provisions under this new Act will become law in October 2010.  Although the Act covers the same groups protected by existing legislation (ie age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity), the Act now limits the circumstances when employers can ask health related questions before a job offer is made. Until an offer of employment has been made, the Act states employers can only ask health-related questions to help:
  
  - “decide whether you need to make any reasonable adjustments for the person to the selection process
  - decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job
  -  monitor diversity among people making applications for jobs
  - take positive action to assist disabled people
  - assure yourself that a candidate has the disability where the job genuinely requires the jobholder to have a disability”

During Employment

• Induction
  All staff must receive a comprehensive induction completed before they are allowed to work unsupervised
• Training
  Employees must receive training, professional development, supervision and appraisal appropriate to their position
• Night Workers
  Under the Working Time Regulations 1998 employees that work at night must be offered a free health assessment before they start working nights and on a regular basis after that (i.e. at least once a year).  A follow up examination must be provided by a health professional where necessary.  Records of night workers' health assessments must be kept for two years or, if they did not accept the offer of a free health assessment, record when the offer was made

Sleep In Payments

• Sleep Ins
  Covering a 24 hour operation often requires employees to sleep in.  Employers need to be aware that time spent at employer’s premises for a sleep in shift counts as working time.  Under the Working Time Regulations 1998, workers should have 11 hours rest in a 24 hour period. If an organisation is providing essential 24 hour care they may be exempt from the daily rest requirements, however they still need to provide workers with “compensatory rest” which must be taken as soon as possible after a shift ends.  Therefore, allowing employees to work a late shift, sleep in and then work an early shift most likely will breach the Working Time Regulations.  Employers can comply with the regulations by ensuring workers take their “compensatory rest” at the end of their sleep in shift.
• National Minimum Wage
  All employees should be paid at or above the national minimum wage rate. In order to ensure you are paying at or above the national minimum wage, records should be kept for each pay reference period. These records will be required should an audit by the National Minimum Wage Commission be carried out.  Where an employee sleeps in then the number of hours spent at the employers premises must also be used for the calculation.  For example, take the total amount earned in a pay reference period (ie 1 month) and divide by the number of hours worked including the time sleeping in. Any shift allowance or on call payment can be included in the calculation.  The outcome must be that the worker’s hourly rate is not below the national minimum wage.  The national minimum wage rates are due to increase in October this year.  The current rates are:
  
  £5.80 – for workers aged 22 and over
  £4.83 – for workers 18 to 21
  £3.57 – for workers 16 to17