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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questions?
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