Employment Law Coffee Break | Strikes, fit notes and time off for IVF

Strikes, work to rule and other forms of industrial action 

With national rail strikes taking place this week and the likelihood of more industrial action in both the rail industry and across other public services, we talk this week with Julian Hemming, a Partner and member of our Industrial Relations Team at Osborne Clarke, who helps our clients with managing strikes and other forms of industrial action. Julian talks us through the requirements for, and law behind, strikes and other forms of industrial action such as "work to rule".

With a number of employers in the news for considering the payment of one-off "cost of living bonuses", it is important to remember that earlier this year the Supreme Court handed down an important decision for employers who recognise a trade union for collective bargaining purposes, finding that an employer's direct pay offers to union members, while a collective bargaining process was still ongoing, were unlawful inducements. The Supreme Court did not rule out an employer making direct pay offers where a collective bargaining process is not in progress, for example, where the collective bargaining has been exhausted or where the employer has a genuine business reasons for approaching employees directly, but legal advice should be taken before considering any payments where industrial action is a possibility. This position has been further reinforced by an Employment Appeal Tribunal decision that has now been published, but pre-dates the Supreme Court's ruling.

For support on these issues please contact our Industrial Relations team including Julian Hemming, Paul Killen and Phillip Chivers.

Changes to fit notes

New legislation to allow a wider range of healthcare professionals to certify fit notes has been introduced by the government to ease pressure on GPs and follows the introduction of digital certification of fit notes in April 2022.

From 1 July 2022 nurses, in addition to doctors, occupational therapists, pharmacists, and physiotherapists will also be able to certify and issue fit notes. The change is intended to enable to enable patients to see the most relevant healthcare professional and to "support and empower better conversations" about work and health between employers and staff.

Employees who are sick for more than seven days can be required by their employer to provide a fit note to provide evidence about their absence and any relevant advice on how to support them in remaining or returning to work. During the first six months of an employee's sickness absence, the healthcare professional can issue a fit note to cover a maximum of three months. Once the employee has been sick for more than six months with the same illness, then a fit note can be issued for an unlimited period of time.

As GP practices struggle to clear the backlog caused by the Covid-19 pandemic, the extension of the fit note certification should make it easier for some employees to obtain the necessary certification and guidance to enable their employers to make any workplace accommodations necessary. The government has published guidance for employers and line managers on using fit notes effectively in the workplace (although this has not yet been updated to reflect the latest changes).

It remains the case that where an employee is off for an extended period, employers should consider getting a medical report from a specialist to better understand when and how the employee might be able to return to the workplace and what accommodations the employer will need to consider. Where the employee has a qualifying disability under the Equality Act 2010, the employer will need to consider what reasonable adjustments can be made to enable the employee to continue working or to return to the workplace.

Right to time off for fertility treatment

With a renewed focus on employee wellbeing and diversity and inclusion, employers are increasingly recognising the challenges many individuals face on a personal level and the role of the employer in supporting them within the workplace. We looked in an earlier Coffee Break at how employers are revisiting workplace policies to consider such issues including, for example, how support can be provided to employees through menopause, miscarriage and those undergoing in vitro fertilisation (IVF) and other assisted reproduction treatments.

Earlier this week, the Fertility Treatment (Employment Rights) Bill was presented to the House of Commons. This seeks to give employees the legal right to have time off work for appointments related to fertility treatments. This is a private members' bill so how far it proceeds through the parliamentary process remains to be seen. However, it has thrown a spotlight on the gap in employment protection for individuals looking at IVF treatment.

Employees do not currently have a statutory right to take time off, paid or unpaid, for fertility treatment such as IVF. A woman undergoing IVF will be deemed pregnant only from the point of the point of implantation of fertilised ova; at which point the statutory entitlement to take time off for antenatal appointments will apply and an employee will be protected from any pregnancy and maternity related discrimination.

At earlier stages of the process, absent any company specific policy, employees are left to take time off as holiday or sickness absence in order to attend fertility treatment appointments. As women, as a general rule, usually require more treatment than men for fertility, employers who take action against an employee for taking time off for fertility treatment risk an indirect sex discrimination claim if this action cannot be justified. An employer also remains at risk of discrimination claims on grounds such as sex or sexual orientation where an employee can show less favourable treatment with an appropriate comparator, for example in the way the employer responds to any requests for time off, treatment under any sickness absence policy and any request to work more flexibly.

Pending any legislative reform, some guidance for employers is provided in the Equality and Human Rights Commission Code of Practice (which is not legally binding but may be taken into consideration by Employment Tribunals). It states that "it is good practice for employers to treat sympathetically any request for time off for IVF or other fertility treatment, and consider adopting a procedure to cover this situation" which should include "designating a member of staff whom they can inform on a confidential basis that they are undergoing treatment".

Reflecting diverse family structures, employers are increasingly considering what support they can provide to their employees, whether through introducing a policy on fertility leave, forms of financial support for IVF and other assisted reproduction treatments through an employee benefits programme and/or offering support on a case by case basis. Care will need to be taken that any policies adopted or benefits provided are inclusive and applied consistently to avoid inadvertent discrimination claims. In all cases, employees undergoing IVF or other assisted reproduction treatments should be treated sensitively and confidentiality maintained. Many employers are also exploring support mechanisms, such as internal staff networks, educating managers and employee assistance programmes.