We know that most GP practices are currently stretched to capacity and beyond, particularly while Covid-19 remains prevalent; so having to deal with an employment tribunal (ET) claim is something we’d all rather avoid where possible.
ET claims can be brought for a variety of reasons, although they most commonly relate to discrimination or unfair dismissal. While it is impossible to completely eliminate the risk of claims arising, laying solid foundations and keeping in mind a few key principles should minimise exposure for your practice.
Ensuring that your key people have a working knowledge of employment-related legal risks is the first step to avoiding claims.
Discrimination is governed by the Equality Act 2010 and can take many forms, including:
Discrimination can only occur when an individual is treated unfavourably due to at least one of nine ‘protected characteristics’: age, sex, disability, marriage and civil partnership, pregnancy and maternity, race, religion or belief, gender reassignment or sexual orientation.
Remember that discrimination can occur before the employment relationship has even started, during recruitment, as well as during employment, and after the employee has left.
When it comes to dismissing a member of staff, remember that there are only five potentially fair reasons for dismissal: conduct, capability, redundancy, legal/statutory reasons, or ‘some other substantial reason’ (a ‘catch all’ category that should be used with care). It’s crucial to choose your reason carefully and stick to it, as well as ensuring that a fair process is followed leading up to dismissal. Be mindful of the risk of ‘constructive dismissal’ too, whereby an employee feels that they have no option other than to resign.
Ensure that your practice has disciplinary and grievance procedures in place that reflect the ACAS Code of Practice and ensure that these are followed.
Think about what other core policies and procedures would be useful to set clear standards and expectations on. For example, as a starting point, you might consider a Bullying and Harassment policy, to emphasise that such behaviour is considered inappropriate, and an Equality and Diversity policy, highlighting the protected characteristics and the expectation that staff will speak and act respectfully at all times.
Written policies can also help your managers and decision makers navigate difficult issues experienced by employees and provide appropriate support. For example, many employers have recently introduced Menopause policies, to educate staff on this sensitive issue and signpost sources of help.
As a minimum, we advise providing equality and diversity training to managers and staff, particularly because your practice or its Partners could be held vicariously liable for any discriminatory actions by employees.
Training your managers and decision makers to implement your workplace policies fully and fairly, including dealing with complaints or managing misconduct, may also help ward off claims.
Wherever possible, you should act consistently and apply policies and procedures to all employees equally, to avoid allegations of unfair treatment or discrimination.
However, to minimise the risk of ET claims, it is important to consider an employee’s individual circumstances too. For example, a policy requiring everyone to work from 7am every day may be indirectly discriminatory to women who are more likely to be primary carers and responsible for getting their children ready for school. While it may be possible to justify any essential workplace rules, even if they might indirectly discriminate, it is important to keep an open mind and consider requests for flexibility wherever possible.
Similarly, the duty to make ‘reasonable adjustments’ for disabled staff may require a flexible approach, such as altering an employee’s working hours or allowing more time for rest breaks.
To avoid ET claims, it is crucial to fully engage with all staff complaints and demonstrate that they are being taken seriously, especially where concerns are raised about any aspect of working practices, health and safety or patient safety. An employee raising a complaint of this nature may have ‘whistle-blower’ protections: meaning that brushing off concerns or treating the employee unfavourably in any way because of the issues they have raised may be unlawful.
We know that GPs expertly handle difficult clinical conversations every day but can be less confident about broaching issues with staff. However, biting the bullet and addressing any issues promptly and decisively can prevent problems from escalating and reduce the risk of later litigation. Early intervention, handled well, will reinforce expected standards and allow employees the opportunity to improve their behaviour or address any problems before a situation becomes entrenched.
As with any clinical interaction, it is crucial to keep accurate records of key employment-related conversations you have with your staff. These will act as an aid to communication and will help you demonstrate that you have acted fairly if a claim is made.
Recording key terms and conditions of employment in a well drafted contract provides essential clarity and is a useful reference point for any employment related discussions.
As soon as you sense a problem brewing, be it conflict between employees, or the first signs of underperformance, it will always pay dividends to seek legal advice at an early stage. Prevention may be easier than cure, and a specialist employment law advisor can help you navigate even the most sensitive personnel issues and avoid that dreaded ET claim.
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