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Q & A - Staff Issues
Index
STA16 - Flexible working
STA15 - Offer letters
STA14 - Doctors and working time regulations
STA13 - Paternity leave
STA12 - Maternity pay
STA11 - Attached staff
STA10 - Criminal records
STA09 - Police cautions
STA08 - References
STA07 - Smoking
STA06 - Christmas gift
STA05 - Paternity leave
STA04 - European working time directive
STA03 - Part time staff
STA02 - Fixed term contracts for staff
STA01 - Unsatisfactory employee
Q STA16 - Flexible working - One of our office staff asked to change her hours to fit in with caring for her young children. We agreed to this
under the flexible working arrangements and another member of staff is now working those hours that she found inconvenient. She has now asked to change back to her original hours, which would place us in a difficult
position with the other member of staff. Are we obliged to agree to every new request to change her working hours? (16/02/04)
Answer - From April 6th 2003 parents of children aged under six, and parents of disabled
children aged under 18, have had the right to apply to work flexibly and their employers have had a duty to consider those requests seriously. The employee can ask for a change in the hours, times and place of work
to be considered. The employee must have worked for the employer for 26 weeks continuously at the time of application and the application must be made in order to care for the child.
An application may be made for a specified time period only and a trial period may be agreed. However, if the variation has not been made on that basis, then the
contractual terms are permanent and the employee has no automatic right to change back to their previous pattern of work.
After a 12 month period a fresh application may be made and would have to be considered again in the usual way.
Further details are available in the ACAS advice leaflet Flexible Working
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Q STA15 - Offer letters - In our job offer letter to our new receptionist we inadvertently specified more days holiday than we
subsequently included in her formal contract. She claims that we are bound to honour the terms set out in the offer letter. Is she correct?
(16/02/04)
Answer - Our understanding of this situation is that the offer letter
forms part of the contract of employment in law and you are therefore obliged to honour the terms of employment specified in it.
You will undoubtedly always check in future that any job offer letter is consistent with your formal contract! The formal contract should include
all the terms of employment that have been agreed. It is wise to mark all other correspondence as "subject to contract".
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Q STA14 - Doctors and working time regulations - How does the European Working Time Directive (WTD) affect the employment of GPs?
(22/01/04)
Answer - All employed doctors are currently subject to the WTD, under
which working time may not exceed an average of 48 hours for each seven days. Doctors in training are not covered by the regulations until 1 August 2004 when their working hours will be restricted to 58. In 2009
these will be reduced to 48hours. The regulations apply to each individual worker, and not to a specific job.
The onus of responsibility is on the employer to take "reasonable" steps to comply with the regulations and the Health and Safety Executive has
the power to take any necessary action against an employer, or employers, who flout the regulations.
If any doctor is employed for a period that brings his or her total working hours to more than those stipulated in the WTD, this would
breach the regulations. Since the WTD applies to each individual this includes the total hours worked in any capacity, whether employed or self-employed, and whether for one employer or a number of employers.
An employer should therefore always enquire whether an employee is working elsewhere, and should require employees to provide details of
any hours worked elsewhere. The employer must then take all reasonable steps to comply with the regulations. If an employee chooses to conceal this information, the employer would probably be considered
to have acted "reasonably" to ensure compliance.
Doctors in training are currently covered by the limits imposed by the 'New Deal' that includes a maximum average of 56 hours per week.
Doctors who work on an exclusively self-employed basis are not subject to the WTD, but the regulations do apply to a self-employed doctor who
chooses to work additional hours in an employed capacity. The employer or employers are responsible for enforcement.
The working time directive is intended to protect employees from exploitation by an employer. If an employee chooses voluntarily to
exceed the hours stipulated in the WTD, he or she should be asked to sign an opt-out waiver.
However, any doctor who works while overtired may well place patients at risk. If a patient suffers harm as a result, that doctor may
well bear both a professional and legal liability for failing in their duty of care to the patient. The WTD would provide some objective measure of the European view of "excessive" working hours in this context.
An employer who provides medical services to patients and who permits an employed doctor to work excessive hours, even if a waiver has been
signed, could also be deemed to have failed in their duty of care to patients. Where the employer is a doctor this could involve both a legal and professional liability.
An employer that had effectively forced a doctor to waive their rights under the WTD, would almost certainly share in that responsibility.
The implementation of the WTD has been complicated by a recent judgement in the European court of justice, known as the Jaeger
judgement. As a result of this judgement, a doctor on call at their place of work is considered to be working throughout the whole period, even if sleeping! A doctor who is on call from home is not considered to be
working, except for any periods when he or she is actually called out.
An employed doctor who is required to work more than 13 hours continuously, due to an unforeseen situation or emergency, or who is
called out from home, may on occasions exceed the hours specified in the regulations. He or she would then be entitled to a compensatory rest
period. This should be permitted as quickly as possible but if this is not possible the employer must try to protect the doctor's health and safety in other ways.
See also:
Q&A working time directive ;
The Working Time Regulations 1998 ;
Hours of work and rest requirements - a comparison between New
Deal and Working Time Regulations requirements ;
European Working Time Directive following the Jaeger judgement - January 2004
Q STA13 - Paternity leave - I am a partner in a GMS practice and intend to take statutory paternity leave when my first child is born.
The PCT is being very unhelpful about this. Can you advise me please?
(10/12/03)
Answer - Our
Q& A on Paternity leave sets out your legal rights in this respect paternity leave . Under the Employment Act 2002 all natural
fathers, provided they have been employed for a continuous period of at least 26 weeks before the birth, are entitled to at least two weeks' leave, taken within a minimum of 56 days of the date of the child's birth.
You must inform the PCT in writing of the date when you expect to take the time off preferably at least 28 days in advance, but otherwise as
soon as is reasonably practicable. You must also seek approval of any deputising arrangements that you have made.
Your application must be accompanied by a letter written by the practitioner confirming prospective fatherhood and giving the date of expected confinement.
We would suggest that you refer the PCT to this information and also direct them to paragraphs 49.13 and 49.14 in the Red Book, which set
out the practical details for new and adoptive fathers. The Red Book allows you to take the time off in the first 18 weeks of the child's birth.
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Q STA12 - Maternity pay - If I start my registrar year late in my pregnancy do I still qualify for maternity pay? (17/07/03)
Answer -
This answer to this question was no longer accurate and will re re-drafted as soon as possible.
See Q STA18 - Maternity Pay for revised guidance.
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Q STA11 - Attached staff - We are a small practice and recently helped select a new young and enthusiastic Health Visitor. She shares
our vision of the future and has been working very happily and satisfactorily with us for several months. However, she has now been told that she will be moved to another practice. She is very
unhappy about the move, as are we. What can we do to stop this change being imposed? (19/03/03)
Answer - The need for efficient multidisciplinary teamwork in general
practice is widely acknowledged and it seems rather short-sighted to disrupt a clinical team that is working well together, unless there are very good reasons for the change and no other possible solution.
Unfortunately some PCTs regard Health Visitors as a locally available resource to be deployed as, when and where the PCT thinks fit.
You should resist PCT pressure as strenuously as possible but, since she is not employed by your practice, you may not be able to prevent the
change. The health visitor should certainly resist being moved against her will. In view of the national shortage of health visitors it does not
seem sensible for the PCT to risk alienating her in case she decides to move to an area with a more sympathetic personnel policy.
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Q STA10 - Criminal records - We are about to employ a practice caretaker. Does the applicant have to declare any criminal
convictions and do we have to run a check with the Criminal Records Bureau (CRB)? (22/01/03)
Answer - We have made specific enquiries with the CRB and the Apex Trust on your behalf.
The Apex Charitable Trust has confirmed that the job title is irrelevant to this issue. In this situation it would be a discretionary issue that the
employer would have to determine on the basis of the employee's proposed role in the practice.
If you believe that it would be reasonable to require the employee to divulge any history of a criminal conviction, then you must tell the
applicant that the Rehabilitation of Offenders Act does not apply and ask him or her to fill in a suitable declaration. (Model declaration)
A check with the CRB is not obligatory. However, if you believe that a CRB check is required, your practice may register independently with
the Criminal Records Bureau. It will cost £300 to register and £12 for each check. Alternatively you may apply for a check using the PCT as an
"umbrella" organisation. A check made in this way will cost £12, plus a small administration fee. Checks are currently taking several weeks.
Nurses, doctors, those providing healthcare services and people working with children and vulnerable adults are always exempt from the
protection offered by the Rehabilitation of Offenders Act. However, the required Criminal Records Bureau checks for many staff in the healthcare, social care, and education sectors have been postponed for
the present, and will be introduced in due course, when the bureau is able to cope with the workload.
Further information;
STA09 Police cautions
Criminal Records Bureau
CRB Information line - 0870 90 90 811
CRB Registration line - 0870 90 90 822.
Important changes to legislation; postponed
The Apex Charitable Trust
Information line - 0870 608 4567
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Q STA09 - Police cautions - Can you explain the implications of the
Rehabilitation of Offenders Act and how it applies to doctors and other practice staff? What role will the Criminal Records bureau have? (12/12/02)
Answer - Over a quarter of the working age population has a previous
conviction. The Rehabilitation of Offenders Act (ROA) was introduced to help rehabilitate those who have received a sentence of less that 30 months. A "rehabilitation period" of between six months to 10 years
from the date of conviction, is set according to the sentence. After that time the conviction is considered to be "spent". Spent convictions do not
have to be declared when applying for most jobs and there are civil and criminal sanctions against unlawful dissemination of information about spent convictions. A malicious reference to a spent conviction can give
rise to an action for damages.
However, an Exemptions Order applies to all work with children and vulnerable adults, to the employment of all doctors, dentists,
opticians, nurses and midwives, to the employment of any person in the provision of healthcare services and to any occupation involved in running a nursing home. Applicants for these positions are
required to disclose all previous convictions, whether "spent" or not.
Practice nurses and doctors working in general practice would be exempt from the protection of the Rehabilitation of Offenders Act, but
it seems likely that most other staff would be protected by the Act.
Cautions, reprimands and final warnings are not currently included within the protections of the ROA. If cautions were to be included, an applicant
for any of the jobs covered by exemption from the ROA would be required to disclose them under the Exemptions Order. This situation is currently under review.
The recently established Criminal Records Bureau (CRB) will carry out three levels of criminal record check and issue three types of certificate:
- a criminal conviction certificate will show all convictions held at
national level which are not "spent" under the ROA, but will not show "spent" convictions or any cautions;
- a criminal record certificate for posts or purposes which are
exceptions to the ROA will include details of convictions, including convictions "spent" under the ROA and any cautions held at national level;
- an enhanced criminal record certificate will be issued for work
that involves regularly caring for, training, supervising or being in sole charge of persons aged under eighteen or vulnerable adults. This will be the same as a criminal record certificate, but will also
include information from local police records, including relevant non-conviction information.
The CRB is not yet in a position to carry out all of its duties and priority is currently being given to checking those who will be working with children.
HSC 2002/008 Pre and post appointment checks for all persons
working in the NHS in England applies to NHS bodies and is not directly
applicable to employment in general practice. However, it does give detailed guidance on how to implement any necessary personnel checks.
This may be of interest to practice managers when determining pre and post employment procedures in general practice.
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Q STA08 - References - A doctor who used to work with us has recently requested a reference. We were not very impressed by him
and wonder if we are obliged to provide one? (20/12/02)
Answer - It is important to consider whether he was incompetent or
whether more personal reasons are the basis for your opinion.
If he was frankly incompetent you may well have a professional duty to report the matter to the GMC. If he was not incompetent, but his
performance was not as good as you would have liked, then the following extract may be instructive. It is taken from the GMC guidance in Good Medical Practice "
Making assessments and providing references
13. You must be honest and objective when appraising or assessing the
performance of any doctor including those you have supervised or trained. Patients may be put at risk if you describe as competent someone who has not reached or maintained a satisfactory standard of practice.
14. You must provide only honest and justifiable comments when giving references for, or writing reports about, colleagues. When providing references you must include all relevant information which has any
bearing on your colleague's competence, performance, and conduct."
The doctor may be able to mount a legal challenge if you refuse to give a reference because of discrimination or if you write a misleading, false
or inaccurate reference, or one that is intentionally or maliciously false.
It is important to remember that, although references are normally confidential, they may be called as legal evidence.
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Q STA07 - Smoking - Are we obliged to have a formal no-smoking
policy in the practice? (09/12/02)
Answer - The Health and Safety Commission (HSC) has decided to
introduce an Approved Code of Practice (ACOP) to protect employees from passive smoking at work. You are not currently obliged to have a formal policy, but you are obliged to protect your employees from the
nuisance and potential dangers of tobacco smoke in the workplace. There is therefore a potential risk of litigation in the future if employees believe that their health has been damaged by exposure to smoke in the
workplace.
Non-smoking should be regarded as the norm in enclosed workplaces and the employer has no obligation to provide special facilities for smokers.
Many practices would consider staff smoking in the surgery premises was inappropriate.
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Q STA06 - Christmas gift - We would like to give our staff a treat before Christmas. How can we avoid creating a tax liability for
them?
(27/11/02)
Answer - If you provide a gift this will be regarded as a "benefit in
kind" for tax purposes. A better option is to treat staff to a nice meal. You may pay up to £75 a year on entertaining each member of staff before he or she is liable to pay tax on that sum.
The total cost of entertaining, however, is based upon the total number of people invited. It might therefore be a nice gesture to invite the
employees' partners as well. This would effectively allow you a sum of £150 to spend on each employee without attracting a tax liability!
However, if you are generous enough to go over this limit, the total sum for entertaining, and not just the excess, would be regarded as a taxable benefit.
You may wish to check with your accountant to ensure that he agrees with this interpretation!
Footnote:
The annual tax free limit for entertaining staff was raised from £75 to
£150 per head in the 2003 Budget.
The limit for staff entertaining now stands at £150 per head before it is considered to be a taxable benefit, it must be available to all members of staff.
Additional note September 2005.
To enjoy tax free status, staff entertaining must be open to all staff. If
two events are planned, provided the total cost is less than £150, then both are tax exempt benefits. However, if the second brings the total
to more than £150, the whole cost of the second event is taxable, not just the excess!
If the cost of staff entertaining will incur a tax liability for employees then the employer may use a PAYE settlement agreement (PSA) to bear
the tax liability, provided the Revenue is in agreement.
If entertaining staff is an integral part of a training day for all staff then the Revenue may agree to apportion the tax liability as part social event
and part business expense.
Your practice accountant will be able to provide you with specific advice on these matters.
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Q STA05 - Paternity leave - What rights do employees have with respect to paternity leave? (27/11/02)
Answer - The Employment Act 2002 amends a number of pre-existing
employment laws and also introduces additional new legislation. The main areas covered by the Act are paternity and adoption leave and pay, maternity leave and pay, flexible working, employment tribunal reform
and resolving disputes between employers and employees.
Paternity leave applies to natural and adoptive fathers. The employee is now entitled to at least two weeks' leave. This must be taken within 56
days of the date of the child's birth or an adopted child's placement for adoption. The father is entitled to the benefit of all the terms and conditions of employment that would have applied if he had not been
absent from work.
The employee must inform his employer in writing of the date from which he expects statutory paternity pay to begin. This notice should be
given at least 28 days before that date, or as soon as is reasonably practicable. The employee must have been employed for a continuous period of at least 26 weeks before the birth or adoption.
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Q STA04 - European working time directive - I have been told that the European working time directive limits an employee's working
hours. I don't think any of our staff work excessive hours but we would be grateful for your advice. (27/11/02)
Answer - Under The Working Time Regulations 1998 an employee's
working hours must not exceed an average of 48 hours in any 17-week period, unless he or she has willingly signed an opt-out agreement. If an employer dismisses a worker for refusing to sign an opt-out agreement
that dismissal would be regarded as unfair.
The regulations also stipulate that any adult employee who works for more than 6 hours in the day must have a 20-minute rest break and must
have at least 4 weeks paid annual leave. A young worker between the ages of 15 & 18 must have a 30-minute rest break if the working day is in excess of 4.5 hours.
The opt-out that is currently permitted under these regulations is likely to be removed in due course to bring the UK into line with the rest of Europe.
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Q STA03 - Part time staff - One of our part-time receptionists has raised the question of Bank Holiday entitlement. Can you clarify the
situation please? (06/11/02)
Answer - The Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000 came into force on July 1st 2000. This
made it illegal to discriminate against any worker because he or she was working part time. Allowing full-timers the day off on bank and public
holidays, but not part-timers, is clearly less favourable treatment and therefore unlawful under the regulations, unless there is an objective justification.
It may be enough to give workers a paid day off if they would normally work on the public holiday, without giving time off in lieu to those who
would not normally work on that day, if this would produce a fair result. (eg if a shift system means full-time and part-time workers are equally likely to be scheduled to work on a public holiday.) However, where
workers work fixed days each week part-timers could be disadvantaged. Since most bank and public holidays fall on a Monday, those who do not work Mondays will be entitled to proportionately fewer days off. These
will predominantly be part-timers. It may therefore be necessary to give all workers a pro rata entitlement of days off in lieu according to the number of hours they work.
Basically part-timers are entitled to;
- the same hourly rate of pay,
- the same access to company pension schemes,
- the same entitlements to annual leave and maternity/parental leave on a pro rata basis,
- the same entitlement to contractual sick pay, and
- no less favourable treatment in access to training.
Further information is available from;
Equal Opportunities Commission - Part time work
ACAS - changing patterns of work
Part time work
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Q STA02 - Fixed term contracts for staff - We recently employed a receptionist for a three-month trial period and now wish to offer
her a further contract. There are some duties where she needs to improve so we would like to offer her a 1-year contract, renewable at the end of that time if she shows adequate improvement. If we do
this and choose not to renew it would there be any repercussions?
(06/11/02)
Answer - The Fixed-term Employees (Prevention of Less Favourable
Treatment) Regulations 2002 came into force on October 1st this year.
Basically, a fixed-term employee now has the right to be treated no less favourably than a comparable permanent employee. If your receptionist was specifically replacing another employee for a fixed term to cover
maternity leave this would be justifiable, but not otherwise.
The receptionist must be treated under the same disciplinary
procedures as all other employees. You should, therefore, discuss any deficiencies in her work under the currently recommended disciplinary
procedures. These will be legally enforceable in 2003, when the Employment Act 2002 will be fully implemented.
You should, therefore, appoint her with a normal open-ended contract, unless of you believe you would be justified in terminating her present
contract as a result of your disciplinary procedures.
Probationary periods are a legal minefield and much will depend on the initial offer letter or contract that she received when she started in her
current job. You would probably need legal advice if you wished to terminate her employment on the fixed term/probationary basis of that contract.
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Q STA01 - Unsatisfactory employee - We have a member of staff at the practice whose work has deteriorated significantly. We would
really like to get rid of her but do not understand the correct legal procedures. Where can we get advice? (24/10/02)
Answer - The Employment Act 2002 received Royal Assent on 8 July
2002. It covers a wide range of issues including dispute resolution and changes to the employment tribunal procedures. Most aspects of the Act
will not be implemented until 2003, but it might be wise to start moving towards compliance with the spirit of the Act before that time.
The act sets out minimum disciplinary, grievance and dismissal procedures that will be legally enforceable. The financial penalties for
not complying with relevant legislation are substantial!
Basically,
Schedule 2 of the Employment Act sets out that you must provide your employee with a written statement and invite him or her
to attend a meeting to discuss matters before any dismissal or disciplinary action is taken (unless immediate suspension is indicated). At the meeting you should try to agree a mutually acceptable way to
remedy the situation and the employee must be informed of your decision. If the employee wishes to appeal then another meeting should be arranged, but you may take appropriate action before that meeting.
The employer should then inform the employee of the final decision.
The ACAS web site provides comprehensive guidance on best practice in handling these issues in the document Discipline at work and also
provides access to an ACAS helpline for further advice. The DTI web site also provides useful information on the
Employment Act 2002
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