At this year’s Management in Practice conference we asked attendees to share some of their most pressing HR questions – to be answered by GP practice managing partner and HR consultant Robyn Clark. Queries came flooding in, so below is a selection of Q&As that didn’t get air time

Q: Please kindly clarify the position regarding employment rights for newly employed staff regarding the two year rule in terms of dismissal. Also, the new employment law states new staff can request flexible working from day one. What will this mean?

A: Employees only gain permanent employee rights from the point that they reach two years’ continuous service with an employer (although watch this space since the Labour Government has said it intends to change that).

For now though, prior to that two years, employees are not protected under the majority of employment legislation and employers are not obliged to offer enhanced protections/rights such as redundancy pay, and neither can employees bring claims for unfair or constructive dismissal.

This, however, does not apply in the case of discrimination – so if a staff member is dismissed or laid off and the employee has grounds to claim unfair or constructive dismissal on the basis of discrimination, they can still bring a legal claim against the employer.

There are certain rights that employees with less than two years’ service do have – such as the right to maternity leave/pay, the right to be paid at least the national minimum wage, and from the 1 April 2024, the right to request flexible working from day one of employment.

This effectively means someone can be offered a job (presumably with a clear job plan or agreed working hours), then ask to change all that not long after they have started, which can feel difficult to manage.

Hopefully there won’t be many of these very early requests – when you advertise your post ensure you are clear about the requirements. If you’ve got any flexibility in the role be clear about that during the recruitment stage, so you don’t end up with any unexpected surprises. 

Flexible working can come in many guises. It’s not just someone wanting to have every Friday off! It could be:

• A request to reduce or increase contracted hours
• A request to work some or all of their hours from home or another location
• A request to keep their contracted hours but work them in a new way (e.g. compressing  them over fewer days, working term-time only or on an annualised basis)
• A request to manage their duties or responsibilities in a different way (e.g. reducing their on-call commitment, or holding specific clinics on set days).

So what do you have to do as an employer when you receive these requests? First, you have to consider them. ACAS, the public body which provides free and impartial advice for employers, has written into its code of practice on requests for flexible working that all requests should be seriously considered and there has to be a ‘genuine business reason’ not to agree.

If you’re able to agree the request, then just go ahead and decide on an implementation date, confirming this to the employee. You may wish to factor in a review period to ensure that the new arrangement is working for both parties, as this allows you to make provisions to revert back to the original arrangement should you need to.  

If you’re not able to agree the request, the next step is to meet with the employee to discuss the request in more detail, outline the practice’s view and see whether any compromise can be reached.

Often this is a useful exercise as it means both parties can get to an agreeable position, the employee feels heard and supported, and the practice doesn’t suffer any detriment. However,  this isn’t always possible, and the practice may then need to refuse the request. A valid reason needs to be given and the ACAS code of practice  (as mentioned above) contains a useful guide on what is defined as ‘a valid business reason’.

An employee has the right to appeal the outcome, so it’s very important to keep your lines of authority clear here. Ideally, the person hearing the appeal should not have been involved in the original decision to refuse, otherwise it could be viewed as the outcome being predetermined. This means that if the practice manager dealt with the initial request, a partner, or someone equally senior, and separate to the process, should step in at the appeal stage.  

Employees can now make two requests in any 12-month period – so be warned this issue may well start to take up a lot of practice manager time! However, since studies have shown that a flexible working environment is high up on the wish list of many job applicants, it shouldn’t always be seen as a negative. To manage it safely, ensure your practice has a clear flexible working policy and procedure in place. 

Q. We have had a detailed reference request form for a staff member that we are very happy to see the back of! What’s the minimum I need to give? Do I have a duty to the other practice to tell the truth?

A: The minimum would be a confirmation of employment but how many practices will only offer that as a reference? And how many employing practices hate it when they only receive a confirmation of employment and not a full reference? Why are we doing this to each other?

There seems to be a real concern about giving ‘bad references’. But you should not give someone this  – what you should provide is a factually accurate reference.

If you have dismissed an individual for gross misconduct, been through a formal process and have the evidence/paperwork to prove it (this might come from notes of one-to-one meetings such as regular catch-ups; appraisals; significant events or complaints), and you are asked by another employer whether there has been any disciplinary action taken against the staff member, of course, you should answer honestly. As long as you’ve discussed it with the employee in the past and have a record then that’s absolutely fine. 

Not providing factually accurate information is how problems simply get moved around within the NHS. You may be glad to see the back of this person, but is it fair to pass the issue onto someone else? Where the employee is a clinician or has contact with vulnerable people, you should think seriously about your professional obligations with regards to protecting patients and staff as well.

Another important point to consider if you do decide to only provide a confirmation of employment reference is that this approach will need to be your policy for all staff. If an employment offer is withdrawn due to a lack of information, and the employee finds out that you haven’t  followed your usual process, they may have grounds to bring a claim against you.

Q: An employee has informed me they cannot work late shifts (contracted shifts are until 7pm on two evenings) due to childcare. The childcare involves taking their 13 year-old son to the gym. I cannot accommodate a move to an earlier start for this person as I will be short staffed. What do I do?

A: This is effectively a flexible working request. The staff member wants to amend their contracted working  hours, so this needs to be formalised into a flexible working request.

You might be worried that as the employee has mentioned childcare that you’ll have to say yes, right? But that’s wrong.

The maternity provisions of the Equality Act 2010 don’t extend much past the first year of birth, and definitely don’t stretch to a 13-year-old. If the child is disabled you might have to be more accommodating under the disability provisions of the Act, but I’m assuming that this doesn’t apply in this situation. 

Revert back to the ACAS guidance on flexible working, as outlined above. If you’re not going to be able to maintain the required level of service by accommodating this request, then you can say no. If you’re not going to be able to recruit to those hours, then you can say no. As advised, try and work out a compromise if you can, but if that’s not possible then you’d have valid business reasons to refuse. 

Q: If someone has declined to give an employment reference for an individual but they then also make some comments that are very concerning, how would you proceed? Can you use that statement as a reference?

For me, a verbal reference isn’t worth the paper it’s printed on and it can even get you into trouble! As the recruiting organisation, you’d be well within your rights to withdraw the offer of employment and if asked why, all you’d be able to say is that you received concerning information from the referee. This then puts the referee in a dangerous position.

Also, let’s not forget about subject access rights. That applicant could request any correspondence between the referee and yourself, including call recordings, in which case they’d discover what’s been said.

Even if they were unable to get that information, the applicant could still make a legal claim against the referee for slander/defamation and you could be summoned to court and compelled to provide the information you received. Although, of course, the liability in this case sits with the referee, it won’t make a pleasant experience for you. 

A lesson for all employers here – don’t make statements or give ‘unofficial’ references for which you wouldn’t be prepared to stand up and defend in court. And for the employing organisation, always consider the options if you’re given information like this. Why won’t the referee go on record? Is there a personality issue here? Have they not managed this person properly – and is that indicative of a different issue?

And don’t forget that this is what probation periods are for. If you take a punt on someone and it doesn’t work out, you’ll no doubt find out quickly enough and probation is there to support you to end the employment with minimal fuss. 

Q: A staff member joined the practice three months ago and has now announced she is five months pregnant. Unfortunately, she had considerable absences prior to her announcement. While understanding her rights, are there any options or points to consider please?

Congratulations to your staff member! Your first question needs to be whether the absences were pregnancy-related. If they were, then you won’t be able to count them in your sickness management process (and nor should you!).

If, however, they were unrelated then you can count them as you would for any other employee.

But since the staff member is now pregnant, it’s unlikely you’ll be taking the matter any further before their maternity leave commences. If the absences continue or become prolonged, you can enforce an early start to their maternity leave provided it is no longer than 4 weeks before their due date.

If you’re concerned that the staff member might continue to have a high absence rate on their return from maternity leave, then you just need to actively manage this in line with your sickness policy after each absence. 

Remember that pregnancy/maternity is a protected characteristic under the Equality Act 2010, which prevents pregnant staff from detrimental treatment at work while  pregnant and on maternity leave. 

Robyn Clark is managing partner at Kingswood Health Centre, Bristol and an HR consultant. She is a director of the Institute of General Practice Management and an Associate member of the Chartered Institute of Personnel and Development.

To find out about Management in Practice events for 2025 see here