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Employment law/HR questions answered

1 October 2010

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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

A practice manager calls to say he has been speaking to one of his practice nurses about her poor performance in the workplace. He has had several meetings to try and address the issues but, so far, there has been no marked improvement.

The manager has told the nurse that disciplinary proceedings will need to begin and sends her a letter inviting her to attend a disciplinary hearing. In the meantime, the nurse submits a grievance letter alleging that she has been a victim of sexual harassment by one of the practice’s five partners. The practice manager is not sure how to proceed.

 Two issues need to be addressed here: the grievance meeting and the disciplinary process. It is sometimes possible to run both the disciplinary and grievance concurrently. In this case, due to the nature of the practice nurse’s grievance, it would not be appropriate, as her work performance may be suffering due to the impact of the alleged harassment.

The way forward here is to deal with the grievance first. This involves holding a grievance meeting with the nurse to establish the facts and to gather relevant details such as dates, times, specific examples of the unacceptable behaviour and any witnesses.

It is important to highlight that there is no strict definition of harassment, as it is for the person alleging harassment to decide what they find offensive. The practice should carry out a thorough investigation and get witness statements. Clearly, the partner accused of the harassment would not participate in the investigation or grievance meeting as he would be a witness.

Different partners should be involved in different parts of the process to ensure objectivity. One partner would therefore be responsible for the grievance investigation and meeting.
If the grievance was subsequently not upheld, the nurse would have the right to appeal by referring the matter to a different partner.

Once the grievance has been dealt with, the practice would then focus on the disciplinary issue regarding the nurse’s poor performance. This matter would be handled by a partner who had not been involved in the grievance process.

The nurse should be sent a letter inviting her to a hearing, detailing the reasons for the meeting and her right to be accompanied by a colleague or trade union representative. The meeting should address each of the performance issues and give the nurse the opportunity to put forward her side. The partner should then consider all of 
the evidence.

Depending on the outcome, a first written warning may be issued, and clear guidelines should be set out detailing the standard of performance expected from the nurse, as well as the consequences for further misconduct in the time period the warning remains on her personal file.

In general terms, a verbal warning would be placed on a person’s file for six months and a final written warning would usually be placed for 12 months. Regular reviews should be built into the review period, along with any necessary training to help the nurse maintain required 
performance standards.

One of the doctors in a practice has noticed that a previously conscientious receptionist has started to be regularly late for work and is taking odd sick days. The doctor speaks to the practice manager about the situation, who advises she has noticed the receptionist’s behaviour and has spoken informally to her but there has been 
no improvement.

The doctor calls the receptionist in for a meeting to establish what may be causing this behaviour. The receptionist bursts into tears during the meeting and tells the doctor that she is being bullied by the practice manager and is unsure how to tackle the situation.

The receptionist says the practice manager has spoken to her about her conduct and she knows this is unacceptable, but she is uncomfortable speaking to the practice manager about it. The receptionist accuses the manager of ridiculing her in front of other staff members and that she is feeling bullied and harassed.

This situation needs to be handled promptly and with sensitivity and objectivity, as any allegation of harassment and bullying may cause unrest in the workplace and cause tensions among work colleagues.

Bullying and harassment is characterised as offensive, intimidating, malicious or insulting behaviour, with the legal definition being “unwanted conduct that has the purpose or effect of violating people’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.”
In the first instance, where appropriate, the matter should be dealt with informally, as the alleged bully may be unaware that their conduct has caused offence. A simple chat with the manager in this case may help her realise that her conduct has not been well received and could help her think about her future behaviour.

If this doesn’t solve the problem, then a more formal approach may be taken in the form of a grievance. Depending on the outcome of any grievance investigation, the situation may result in a disciplinary hearing being set up to address the manger’s conduct.

In certain circumstances, mediation may be required to find common ground for both parties going forward. The practice may wish to introduce a policy on bullying and harassment. This may begin by stating that this type of behaviour will not be tolerated, giving examples of what will be considered as unacceptable behaviour; that such an incident may be treated a disciplinary offence and how the practice will handle such matters and in what timescales.

The practice should also continue to monitor the receptionist’s timekeeping and absence record in case there is no improvement, which may indicate other issues with this employee, and the appropriate action can be taken.

A fulltime nurse in a small practice is due to return from maternity leave and has called to ask if she could return to work part-time, three days a week. The GP wants to be flexible, but the practice have recently lost another nurse who moved abroad and have decided not to replace her, leaving just enough staff to cover the work. The doctor wants to know what his responsibilities are in this situation, as he’d prefer to work with one fulltime nurse instead of two part-time nurses.

There is no automatic right for a woman returning from maternity leave to be granted part-time or flexible working. However, any practice being asked to consider such a request must give the request full consideration and justify why such a request cannot be accommodated, to avoid any potential employment tribunal claim for discrimination.

Employees can request different types of flexible working, including flexi-time, job sharing, working from home, term-time working and compressed working hours. Any employee can make a request for flexible working, as long as they are the carer for a child under 16 or under 18 if the child is disabled. They also need to have at least 26 weeks’ continuous service on the date that the application is made and have not made a request for flexible working in the previous 
12 months.

There are strict procedures to be followed when such a request is made. In this case, the nurse needs to submit her request in writing, stating that the request is being made under her statutory right to apply for flexible working. She must also confirm in the letter:

  • Her relationship with the child.
  • The work proposal, how it will impact the practice and how this may be dealt with
  • The start date.

Whether she has made a previous application and if so, when.
The practice would need to arrange a meeting with the nurse within 28 days of receiving her request if they do not initially agree to it. If a meeting is required, then the nurse has the right to be accompanied. Following the meeting, the practice would need to notify the nurse of the outcome within 14 days and she would have the right to appeal the decision.

The practice may refuse the request on one of the following grounds:

  • Burden of additional costs.
  • Detrimental effect on ability to meet customer demands.
  • Inability to reorganise work among 
existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during period employee proposes to work.
  • Planned structural change.

The practice needs to show there is a genuine reason why any such request cannot be accommodated and not simply that two nurses working part-time would be more of an inconvenience.