2 Merchants Drive Carlisle, Cumbria CA3 0JW T F E. W. Employment Law Update for Practice Managers

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 ReferenceRetention Recruitment recordsThe Information Commissioner: Employment Practices Code Part 1 6 months from notification of unsuccessful candidates Personnel and training records N/A6 years after employment has ended Written particulars of employment, contracts of employment, and changes to terms and conditions N/A6 years after employment has ended

Keeping Personnel Records GG Type of record ReferenceRetention Working time opt- out forms Regulations 5 and 9, Working Time Regulations 1998 Two years from the date on which they were entered into Right to work in the UK Immigration, Asylum and Nationality Act 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

 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 Contracts of Employment

 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 S1 ERA 1996

 Confidential information  Garden Leave  Pay in lieu of notice  Restrictive covenants  Deductions from wages  Training?  Intellectual Property  Data Protection  Variation  Contractual Benefits? Additional clauses

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

Any questions? Sign up for our weekly employment alert at Thank you for listening