On Tuesday, 2 April, we held a seminar for HR professionals in the social care sector – ‘Preparing for legal changes and navigating financial pressures in the social care sector’. 

The reality for social care is a stark one; rising workforce costs and tightening budgets are only two of the issues being faced. 

Amidst this reality, the challenge for HR professionals is to build a resilient, sustainable workforce model which navigates financial pressures and can meet the ever-increasing demands of new legislation and practice. That’s a big ask! 

We might not be able to change the reality or reverse budget cuts – we are lawyers, not magicians! We used the seminar, however, to highlight some of the key areas that providers should prioritise to future-proof their organisations. 

1. Navigating Financial Pressures – Adapting your workforce 
Changes or adaptations to the workforce are inevitable, considering rising costs and tightening budgets.  Providers are going to be required to do more for less.  For providers that are seeking to adapt their workforce, change roles and/or terms and conditions,  the key messages were: 

a. Proactive approach –  to navigate the financial pressures ahead, providers may need to challenge assumptions about their existing workforce structures. Workforce decisions shouldn’t just be reactive crisis measures. They should be part of a proactive, strategic approach. Key workforce models that your organisations may want to consider include: Annualised Contracts; Own Bank Staff; Zero-Hours Contracts; Apprenticeships; Overseas Recruitment; Cross-Provider Shared Staffing. 

b. Plan carefully – know which changes you are making and why.  Understand when consent is needed, whether changes are contractual and whether you should factor in collective consultation.  

c. Explain your why – if staff understand the need for change and the provider’s goal of providing long-term, good quality care for those they support, they are more likely (although not in every example) to get on board with it and less likely to challenge it. 
 

d. Incentives and flexibility – consider offering incentives to help accept any changes.  Listen to your employees – are there things they would want that you can give them and consider benefits which would be impactful but may not be too financially onerous.
 

e. Timing – do not feel that all changes need to be made immediately and at the same tie.  Transitional arrangements may have less of a detrimental impact on staff and staff morale.  Consider the timings of all changes – securing agreement to a change will be harder if employees consider they have been forgotten or treated badly.  Securing change after an incentive or benefit has been given may be easier.

2. Navigating Financial Pressures – Restructuring your workforce  
Restructuring workforces will inevitably result in redundancies.  These are never easy processes, and so during the session, we highlighted it’s key to remember the following:

a. Adequate consultation – don’t let it be a tick box exercise but rather ensure that it is genuine and meaningful, employees are given enough information to understand the proposals and enough time to respond and their responses are received and considered. Ensure you consult individually, even when collective consultation is going on.  Consult on selection criteria, new roles and responsibilities and do so thinking about the language being used.  ‘We are considering….' will illicit more cooperation than 'we have decided…’.

 
b. Be wary of employee protections – employees on family leave have specific protections and must, during their protected periods, be offered suitable alternative vacancies without a competitive process.  Be wary of using sickness absence as a selection criterion, as this could discriminate against disabled employees.

3. Navigating Financial Pressures – TUPE 
 

a. If you are taking on staff under TUPE – Assess and challenge TUPE applications on every proposed transfer. Staff transfer could be challenged if one of the following applies: the service changes post-transfer; there is no clearly defined and organised group of employees; additional employees are included unnecessarily. Post-transfer strategic discussions should explore whether changes can make the service more sustainable. Changes are possible under TUPE in specific cases where there are economic, technical, or organisational (ETO) reasons for business restructuring.

b. If you are losing a contract under TUPE – Do not automatically assume all staff must transfer. You can explore ways to retain key employees through incentives and offers of alternative roles. 

4. Navigating Legal Pressures – the Employment Rights Bill (ERB)  
The ERB is a significant reform and will bring ‘generational’ change to the workforce. We have no specific information as to when the many changes will come into effect, but here are some sector-specific steps providers might want to take. The Bill is 300 pages long, so we did not provide an exhaustive list, but a snapshot of some things providers could be looking to do, which included:

a. Improve hiring processes – unfair dismissal will become a day one right for all employees and so poor hiring decisions will become more costly.  Upskill recruiting managers to enable more effective appointments.

b. Assess impact of SSP changes – statutory sick pay from day one to all employees (including those earning below the LEL) will be costly and so providers should be assessing the financial impact and budgeting accordingly.

c. Consider new systems to offer guaranteed hours – one of the Government’s promises was to get rid of zero-hours contracts.  They have not gone that far, but employers will be required to offer workers on zero-hour contracts (including agency workers) guaranteed hours in each relevant reference period.  New systems to ensure compliance will be crucial although a collective agreement can bypass this right to a guaranteed hour offer.

d. Consider making changes to the workforce sooner not later – the Government is proposing to make it harder for employers to fire and rehire staff on new terms.  The circumstances when this will be lawful will be very restricted from 2026, so if you want to make any changes, now is the right time.

e. Review compliance – Fair Work Agency will be proactively enforcing compliance with holiday pay, SSP and NMW once it comes into force. Auditing your processes and ensuring correct record-keeping is therefore crucial.

f. Adult Social Care Negotiating Body – This body, comprising employers and unions within the sector, will, once established, set terms and conditions across the sector.  Providers will no longer have individual control over setting wages and conditions below the collectively agreed standards. We would encourage providers to engage with your industry body, which is discussing with the Government what this body looks like.

For further details, please visit our Employment Rights Bill Hub and subscribe to updates. 

5. Navigating Legal Pressures – Duty to Prevent Sexual Harassment at Work, employers must take reasonable steps to prevent sexual harassment in the workplace.  This duty took effect on 26 October 2024. The purpose of this legislation is to help create workplaces where all staff feel safe from harassment and able to report it should it happen to them or a colleague. What should providers be doing to ensure they are meeting this duty?
 

a.  Draw up risk assessments for your organisations – Applying the same principles from health and safety assessments, where is there a risk of sexual harassment in the workplace (it includes harassment by third parties), how high is the risk? Are there any steps in place currently to minimise or reduce that risk and what needs to be done further? 

b. Make sure your harassment policy is up to date and accessible.  It should include examples of sexual harassment, so no one is in doubt about what is meant by the term. It should explain the preventive duty and what the provider is doing to address it, and it should be an easily accessible document.  Staff should know the principles of the policy and should be able to access it, should they want to.  

c. Make sure you have sufficient training in place regards your zero tolerance to sexual harassment.  Training is a necessary part of this, but it needs to be reasonable.  Training could be a formal team event, or it could be smaller groups or even line managers talking to staff and having discussions around the policy.  

d. Make sure staff feel able to report sexual harassment.  This reporting process and mechanism are key; consider whether you have sufficient points of access for staff to report harassment.  Some may want to come forward and be named, and some may want to stay anonymous.  Consider having a helpline or an anonymous reporting mechanism.  
 

e. Read EHRC technical guidance - this is a key document and should form the basis of the steps you take to prevent sexual harassment in your organisation.

f. Talk to a member of our team about our risk assessment package if you would like more guidance.  It’s sector-specific and will assist managers/HR teams, etc in completing the paperwork and taking the necessary actions required under this duty.

If you would like specific advice on any of the information noted above, please do contact any of the team as we would be happy to help.