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SECTOR: Health


We act for a number of GP practices in relation to partnership agreements and dissolutions, and the funding of premises. We advise on disciplinary and professional proceedings, including referrals to professional bodies. We also help create special purpose vehicles for particular areas of clinical development.

We have a specialist team of employment lawyers, all of whom are extremely familiar with NHS and healthcare work. We understand the healthcare profession and the legal issues that surrounding it, and are hence able to advise you on any legal matter. We have real expertise, and can provide genuine value for money.

What are the changes to criminal records checks I should know about?

The Disclosure and Barring Service (DBS) started on 1 December 2012. It is a merger of the Criminal Records Bureau and the Independent Safeguarding Authority (ISA). The DBS oversees criminal records checking, referral and barring. CRB checks are now known as DBS checks. The DBS is charged with introducing portable criminal records checks intended to eliminate the need for repeat checking, along with an online update service which ought to make it easier for employers to assess individuals. A single certificate will be sent only to the applicant who will also have the right to challenge information disclosed about them before it is given to the employer. The DBS is also the body to whom referrals must be made when an employer has any concerns that an employee has harmed or if there is a risk of harm to vulnerable persons. In 2011/2012, the ISA received over 2,500 referrals from the NHS, the care home and domiciliary care sectors. Following the Francis Report into concerns at Mid-Staffordshire NHS Foundation Trust (published February 2013) the number of referrals could rise significantly. For health care professionals, referrals must also be made to the appropriate professional regulatory body.

One of our nurses has been on long-term sickness absence with virtually no prospect of returning in the near future. We are considering ending her employment. How do we go about it?

Capability is one of the five potentially fair reasons for dismissal. Capability includes ill-health. As with any dismissal, you must follow a fair procedure. In a case of ill-health, you should establish the true medical position, consult with the employee, and consider the availability of alternative employment before making any decision to dismiss. How long a persons job should be kept open depends on the particular circumstances of the case. If there is an underlying health condition, it should be possible to obtain a medical opinion as to when an employee will be fit to return to work. Where there is an underlying health condition, you should consider whether the employee has a disability. If they do, you have a duty to make reasonable adjustments and not to discriminate. You should also consider whether you are under a duty to make a health referral to the Nursing & Midwifery Council.

We have started disciplinary proceedings against one of our physiotherapists who has asked to be legally represented at the disciplinary hearing. Do we have to allow this?

It depends. Under Article 6(1) of the European Convention on Human Rights (ECHR) everyone is entitled to a fair hearing. In 2011 in a case concerning a teaching assistant accused of sexual misconduct with a pupil, the Supreme Court held that an employee is entitled to legal representation when the outcome of the disciplinary proceedings will have a substantial influence on subsequent proceedings which would determine the employees right to practise his profession. If the allegations are found proven, consider whether you would have to make a referral to the employees regulatory body (the Health and Care Professions Council in this case) and possibly to the Disclosure and Barring Service. If your findings would have a substantial influence on those proceedings, then permitting the employee to be legally represented would be the best course of action. In the teaching assistant case, a majority of the Supreme Court held that the outcome of the disciplinary proceedings would not have a substantial influence on subsequent proceedings before the Independent Safeguarding Authority (now the Disclosure and Barring Service), therefore, he was not entitled to legal representation. This is a complicated area and it would be best to take legal advice.

What can we do to prevent staff accessing their Facebook accounts during work tim

It is essential to have clear boundaries in place for what staff can do with your technology when they're at work. You need to introduce a comprehensive policy setting out what they can do and the conduct expected of them when they are online. For example, the policy should include personal use, e.g. personal use of Internet only out with working hours, and email etiquette. You are entitled to monitor computer usage and this should be included in the policy to make staff aware they can be subject to monitoring. You should also make it clear that any breach of the rules will lead to disciplinary proceedings.

We are revising our whistle blowing policy. Does a worker have to raise any concerns with us as their employer in the first instance?

No, the Public Interest Disclosure Act (PIDA) does not require this. Rather, it encourages workers to raise concerns with their employer first by making this the easiest way to obtain legal protection; and making a subsequent disclosure of the same information to an outside body more likely to be protected. Having said that, there may be legitimate reasons why a worker would raise concerns outside their workplace before or after speaking to the employer. Such disclosures are protected providing the worker acts responsibly in accordance with the PIDA.

One of our bank nurses is threatening to sue us for unfair dismissal. Can she do that?

Only an employee has the right to bring a claim for unfair dismissal against their employer. Unlike certain rights (such as rest breaks and annual leave, or maternity and paternity leave), the right does not extend to workers. However, this could be complicated if she has worked for you regularly over a long period of time, or the paperwork is not clear. In addition, there are other claims she could bring against you, such as discrimination claims. The same applies to an agency nurse or health care assistant. They are employed by the agency, not the client i.e. you. If an agency worker has a particular issue about her working conditions, then normally her claim would be against the agency.

  • Robert Gibson
  • Sally Lomas Fletcher
  • Angela Carver
  • Laura Wilson

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