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Employment law Q&A

1 December 2010

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Liz Symon

Employment Law Adviser
Medical and Dental Defence Union of Scotland

An experienced HR generalist and employment law consultant, Liz is an employment adviser with the MDDUS, a medical defence organisation providing access to professional indemnity and expert medicolegal advice for doctors, dentists and other healthcare professionals throughout the UK. Liz has particular experience in advising on (and dealing with) complex and sensitive issues such as sexual harassment, bullying and redundancy

Q: One of the practice nurses is due to turn 65 on 22 October 2011. The practice manager wrote to her in October 2010, giving 12 months’ notice that she will be retired. The nurse feels this is unfair and has complained that she is being discriminated against because of her age and says she wants to continue working beyond her 
65th birthday.

A: In this situation, the practice can proceed with its request for the practice nurse to retire in October 2011 as she was given notice prior to the recently imposed April 2011 deadline. However, the practice needs to ensure it follows the required procedures and advise the practice nurse that she can ask to continue working beyond retirement. A meeting should be arranged to discuss the nurse’s request.

From 1 October 2011, the use of the default retirement age and current retirement procedures will no longer be an option and practices will be unable to justify a retirement dismissal. Previously a practice would have been able to give notice of retirement by writing to the employee no less than six months and no more than 12 months before their 65th birthday. With the new changes to the Employment Equality (Age) Regulations 2006, practices will be unable to follow this process on or after 6 April 2011. Any retirals occurring on or after 1 October 2011 will need to be justified to avoid claims of age discrimination.

A practice may decide to keep a set retirement age but this will need to be objectively justified as non-discriminatory on grounds of age. The practice will be required to show that a set retirement age is a proportionate means of achieving a legitimate aim and that compulsory retirement is an appropriate and necessary means of achieving such 
an objective.

If the practice decides not to have a set retirement age and reviews matters on a case-to-case basis, this still needs to be objectively justified to avoid a claim of age discrimination. If a practice is looking to retire an employee, then a fair dismissal procedure needs to be followed, taking into consideration ordinary unfair dismissal rules. The dismissal will need to come under one of the accepted fair reasons for dismissal, as set out in Section 98 of the Employment Rights Act, ie, capability, conduct, redundancy, illegality or some other substantial reason. Retirement in itself will no longer be a fair reason for dismissal.

Q: A receptionist comes to see the practice manager and is upset because a patient has been making remarks to her that she feels are inappropriate. The receptionist has recently left school and says the patient has been making comments to her that she is not experienced enough to be working on a medical reception, and a more mature person should have the job. The receptionist is understandably quite upset at the comments, and tells the practice manager that she has asked the patient to stop but it has now happened a second time. The receptionist asks the practice manager if there is anything the surgery can do to stop this harassment from continuing.

A: The new Equality Act, which came into force on 1 October 2010, now extends employers’ liability for harassment by a third party from solely sexual harassment grounds to include age, disability, gender reassignment, race, religion or belief and sexual orientation.

The Act makes the practice potentially liable for any harassment that employees suffer at the hands of a third party who is not a practice employee. This could cover patients, locums, suppliers and others who visit the practice. Employers have a duty to protect staff against third-party harassment and to investigate any claims thoroughly.

A claim can only be made if the employer knows that an employee has been harassed by the third party in the course of their employment on at least two previous occasions, and the employer has not then taken reasonable steps to prevent the harassment on the third occasion. While it has to be the same employee who has been harassed on these occasions, the third party may be the same or a different person on each occasion. This is known as the “three strikes” provision.

The first time an employer becomes aware of an issue you should start monitoring the situation in case of further incidents. The second time something occurs you should place the practice on alert; on the third occasion you must act.

However, we would always advise that if you believe there is any potential breach that you act on it on the 
first occasion.
In this case, the practice manager called for advice after the second incident. We would recommend she speak to the patient and advise them that their behaviour is not acceptable.

If necessary, this can be followed up with a written warning to the patient informing them that if their behaviour continues they may be removed from the practice list.

In more serious cases there may be a need to immediately remove the patient or even involve the police. The practice manager can then tell the receptionist what action she has taken and advise her to speak to her again if the patient makes any more inappropriate comments.

Q: A nurse complains to the practice partner about the practice manager. The nurse explains that she had an unwritten arrangement with the manager that she would be promoted to the senior nurse’s post when the current senior nurse leaves – although the manager never promised her this – but the job has just been given to a colleague. The nurse feels the practice manager’s attitude towards her has changed ever since she told him that her husband had suffered a severe stroke. The nurse says the manager told her the other employee got the job because she was better qualified and more suited to the role. But the nurse believes she was passed over because the manager doesn’t feel she could commit fully to the role because of her husband’s health needs. The nurse feels she has been discriminated against due to her 
husband’s disability.

A: The Equality Act 2010 extends its provision to include discrimination against an employee because they are associated with someone who has a protected characteristic. Previously, these characteristics included race, religion or belief and sexual orientation but now also include age, disability, gender reassignment and sex. Discrimination by association occurs when an employee or potential employee feels discriminated against, not because they have a protected characteristic, but because someone they have an association with has a protected characteristic.

In this case, the employee may be able to make a claim that she was discriminated against due to her husband’s disability. This is going to be very difficult to disprove or defend and the premise is that the employer has to try and prove their innocence if there is a claim – not easy. Ideally, the practice should have a robust recruitment procedure in place that would allow them to provide evidence that any recruitment was carried out in a fair, legal and objective way.

There is a risk of the nurse raising a grievance over how she has been treated; the practice manager would then need to justify his decision. Practices should ensure that policies and procedures reflect this legislation and ensure that it is included in the induction process and staff training to raise awareness and educate staff.