Transcript Slide 1

Employment Law Update
for Practice Managers
2 Merchants Drive
Carlisle, Cumbria
CA3 0JW
T. 01228 552600
F. 01228 549560
E. [email protected]
W. www.baineswilson.co.uk
Overview
 The recruitment process
 Disclosure & Barring Service checks
 Keeping personnel records
 Probationary periods
 Contracts of employment
 The ideal handbook
 Managing performance
The Recruitment – the Legal
issues
 Discrimination
 Data Protection
 Right to work in the UK
Recruitment - Discrimination
 Protection for job applicants from
discrimination or victimisation in:
 Arrangements for
interview/recruitment
 Terms of employment offered
 Refusal to offer employment
 Harassment
Recruitment - Discrimination
 Protected characteristics:
 Age; disability; gender
reassignment; marriage and civil
partnership; pregnancy and
maternity; race; religion or belief;
sex; and sexual orientation
 Advertisements
Recruitment – Data Protection
 Candidates should be made aware their
personal data is being held
 The reason (ie the recruitment process)
 Duration (eg 2 years)
 Unsuccessful candidates
 Interview notes
 Subject access request
 Transfer of information to personnel file
Establishing the Right to work
in the UK
 Immigration, Asylum and Nationality
Act 2006
 ‘An employer negligently hires an
illegal worker’
 Fine of up to £10,000
 Defence
Establishing the Right to Work
in the UK
 Criminal offence
 ‘An employer knowingly hires an illegal
worker’
 Custodial sentence of up to 2 years
 Unlimited fine
Establishing the Right to work
in the UK
 Checking documents
 Before employment
 List ‘A’ and ‘B’
The Recruitment Process
‘The Bolton Pensioner’s
Jogging club seeks a new
Treasurer; she must be
mature, of UK origin,
heterosexual and a regular
churchgoer. The successful
candidate will enjoy jogging,
needlework and will have a
cheerful and sunny
disposition.’
The Recruitment Process
 Identifying the vacancy
 Job description and person specification
 Advertising
 Inviting applications (either using application forms
or other means of applying) and dealing with
speculative applications
 Undertaking equal opportunities monitoring
 Shortlisting and interviewing
 Making an offer of employment
 Conditions to be satisfied?
 Inducting the new employee
The Interview
 Reasonable adjustments?
 Venue
 Timing
 Interviewer?
 Questions
 Notes/doodles
 Tests
 Written
 Psychometric
The Offer of Employment
 Conditional Offers?
 References
 Medical examinations
 Health questionnaires?
 CRB checks
 Drug & Alcohol testing
 Withdrawing an offer?
The Offer of Employment
 Check qualifications
 Ask to see originals and take
copies
 Permission to work in the UK?
 Ask for documents
 Ask everyone
Do’s & Don’ts
 Disability
 Reasonable adjustments
 Asking health related questions?
 Age
 Monitoring
 Marital status
 Childcare responsibilities
Do’s & Don’ts
 Training of managers
 Keep records of who received training
and when
 Prepare interview questions
 Keep interview notes
 Record non-discriminatory reason why
candidate was not successful
Recruitment – Defending your
position
 Training
 Equality & Human Rights Commission (EHRC) –
Employment Statutory Code of Practice
 Creating a paper trail
 Applicable policies/procedures, job description,
person specification, selection criteria, any
written test, notes of the shortlisting process,
interview questions, notes of interview, minutes
of any interview panel discussions or decisions
following interviews
Case
Study
Criminal Records
Checks
 Old system of Criminal Records Bureau
(CRB) checks
 Disclosure and Barring Service (DBS)
 Required applications?
 Permitted applications?
 Care Quality Commission Outcomes
 Portable DBS Checks
CRB Checks
 Established in March 2002
 Concerns about the safety of children,
young people and vulnerable adults
 Replaced system of checks dealt with
by police forces
 Disclosed criminal records and, if
requested, details about whether
applicant ‘unsuitable’ for role
 Sent simultaneously to applicant and
employer
Reform
 Disclosure and Barring Service
 Criminal Records Bureau
 Independent Safeguarding Authority
 1 December 2012
 Why is it necessary?
Application Types
 Standard DBS Check
 Spent and unspent convictions, cautions,
reprimands, final warnings
 Enhanced DBS Check
 As above - plus any additional information
held locally by police forces that is
‘reasonably considered’ relevant to the
post applied for (formerly ‘might be’)
 Enhanced DBS with lists Check
 Includes check of DBS Barred Lists
 Children
 Adults
GP Services?
 Necessary to consider who you must, may
or cannot submit to a DBS Check –
different rules for different staff
 Rehabilitation of Offenders Act 1974
(Exceptions) Order 1975
 Working with children
 Working with vulnerable adults
 Medical Practitioner /Nurse / Psychologist
 Provision of health services and access to
service users in the course of their duties
GP Services?
 Safeguarding Vulnerable Groups Act 2006
 Amended by Protection of Freedoms Act 2012
 Lists ‘Regulated Activities’ which require
Enhanced DBS with Lists Check:  Providing health care
 Providing personal care
 If not ‘Regulated Activity’, may still apply for
Enhanced DBS Check or Standard DBS
check
 Former definition of ‘Controlled Activity’
(covers most support staff)
 Access to patients?
Care Quality Commission
 Outcome 12 – Requirements
relating to workers
 Refers to CRB checks, Regulated
Activity checks and ISA
Registration
 Practice needs to be satisfied that
they have undertaken the requisite
checks on staff
 Evidence available for inspection
Online Update Service and
Portability
 Commencing March 2013
 Applicants can opt-in for their
certificate to be updated electronically
 Aids portability, especially where
applicant has multiple jobs
 Free for volunteers, fee otherwise
 No new information?
Legal Challenge
 R (T and others) v Chief Constable of Greater
Manchester and others [2013]
 Challenge to current system of disclosure
under Article 8 of the European Convention on
Human Rights (Right to Privacy)
 Factors which are not considered:  Seriousness of offence
 Age of offender at the time of the offence
 Sentence imposed
 Time elapsed since the offence
 Any re-offending
 The nature of the work applied for
 Home Office appealing the decision
Keeping Personnel Records
 The Data Protection Act 1998 states:
‘that personal data should not be
kept for longer than is necessary
for the purpose for which it is
processed’
 Information Commissioner’s
Employment Practices Code
Keeping Personnel Records
Type of record
Reference
Retention
Recruitment records
The Information
Commissioner:
Employment
Practices Code Part 1
6 months from
notification of
unsuccessful
candidates
Personnel and
training records
N/A
6 years after
employment has
ended
Written particulars of
employment,
contracts of
employment, and
changes to terms and
conditions
N/A
6 years after
employment has
ended
Keeping Personnel Records
Type of record
Reference
Working time opt- Regulations 5 and 9,
out forms
Working Time
 G
Regulations 1998
Retention
Two years from the date
on which they were
entered into
Right to work in
the UK
Immigration, Asylum
and Nationality Act
2006
2 years after employment
has ended
Checks on
criminal record
Rehabilitation of
Offenders Act and
Information
Commissioner's
Employment Practices
Code
Should be deleted
following recruitment
process unless relevant
to ongoing employment.
Once the conviction is
spent, should be deleted
unless it is an excluded
profession
Induction
 Signed contract of
employment?
 Job description?
 Induction checklist?
Probationary Periods
 Is there a benefit in having a probationary
period?
 How does it link to the disciplinary
procedure?
 Notice during probationary period
 Extending the probationary period
Appraisals
 At least annual
 Employee’s assessment of themselves?
 Purpose:
 To discuss performance
 To discuss the future
 To set objectives
 To discuss training requirements
Case
Study
Contracts of Employment

Important to set out the Practice’s
expectations

Express Terms

Implied Terms

Incorporated terms

S1 Employment Rights Act 1996 –
required terms

BUT note CQC outcome 12 (Workers) –
Evidence
S1 ERA 1996
 Must have…..

Names of Employer / Employee

Commencement date

Continuous service?

Remuneration – rate/scale and interval
-
Overtime?

Hours of work

Holiday Entitlement and Pay
S1 ERA 1996
 Must have…..

Sickness terms, including pay

Pension schemes

Notice required from both parties or fixed
term period

Job title or brief description of role

Place of work

Collective agreements?
S1 ERA 1996
 Must have…..


Work outside the UK for more than
One month?
-
Period
-
Currency the employee will be paid
in
-
Any additional pay or benefits
-
Terms and Conditions relating to
their return
Discipline and grievance procedures
-
Non-contractual
-
Right to suspend
Additional clauses

Confidential information

Garden Leave

Pay in lieu of notice

Restrictive covenants

Deductions from wages

Training?

Intellectual Property

Data Protection

Variation

Contractual Benefits?
Employee Handbooks

Purpose is to establish rules and procedures

Provide useful guidance to staff and managers

The extent or depth to which rules and
procedures are documented vary significantly
between employers

Contractual or non-contractual?

Factors to consider

Risks
Employee Handbooks

Make reference to Handbook in Contract
of Employment BUT specify that it does
not form part of employee’s terms and
conditions.

Employee Handbooks should be kept
under frequent review to ensure they
reflect the current legislation and best
practice.
Policies &Procedures

CQC Outcome 14 (Supporting Workers) – Suggested
Policies

Equal Opportunities & Dignity at Work

Health and Safety

Recruitment

Training and Development

Absence Policy

Clinical Registrations

Code of Conduct

Significant Events
Policies &Procedures

Other policies and procedures

Disciplinary

Grievance

Capability / Performance Management

Social Media

Whistleblowing

Maternity/Paternity/Adoption/Statutory Leave

Substance Misuse

Data Protection
Fair dismissals
 Two elements to avoid an unfair
dismissal:
 Potentially fair reason for dismissal
 The Employer acts ‘reasonably’,
including following a fair procedure
Fair reasons for dismissal
 5 fair reasons (S98 Employment Rights Act
1996):
 Conduct
 Capability
 Redundancy
 Contravention of any enactment
 Some other Substantial Reason
(‘SOSR’)
Adopting a fair procedure
 Suspension?
 Investigation
 Letter inviting employee to disciplinary
hearing
 Right to be accompanied
 Disciplinary hearing
 Decision in writing
 Appeal
 Decision in writing
ACAS Code on Disciplinary and
Grievance procedure
 Deal with issues promptly
 Act consistently
 Carry out necessary investigations to establish facts
 Inform employees of basis of problem
 Give employees an opportunity to put their case
 Allow employee to be accompanied at formal
disciplinary hearings
 Allow employee to appeal against formal decisions
Capability
S98(3) Employment Rights Act 1996:
“Capability” in relation to an employee , means his
capability assessed by reference to skill, aptitude,
health or any other physical or mental
quality………”
Performance Management

Performance management
procedure?

Disciplinary procedure?

ACAS Code of Practice on
Disciplinary & Grievance
Procedures
Performance Management
 Job description
 Informal?
 Letter, meeting, right to be accompanied
 Objectives, improvement required, timescale &
consequences of failure to improve
 Training, support, occupational health intervention,
mentoring/supervision
 Appropriate level of warning?
 Demotion?
 Dismissal?
Conduct v Capability
 Can’t or Won’t?
 Was any instruction given reasonably?
 Is performance or conduct related to an
employee’s health?
 Which procedure?
 What are you trying to achieve?
 Improvement = capability
 Behaviour = disciplinary
Case
Study
Thank you for listening
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