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Saturday 1 October 2016
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Employment law Q&A

Insight

JANICE SIBBALD

Employment Law Adviser
Medical and Dental Defence Union of Scotland

Janice is an HR and employment law adviser with the MDDUS, a medical defence organisation providing access to indemnity and expert medicolegal advice for doctors, dentists and other healthcare professionals throughout the UK. Janice graduated with a human resources management degree from Stirling University before working in business-facing HR roles with the Royal Bank of Scotland and Royal Dutch Shell Group



Q: Following the announcement by the government that 29 April is to be designated an extra public holiday, how will this affect employers and how can they can practically manage this? Many employers may be willing and able to grant the additional holiday, but what about those employers who, for business or other reasons, may not wish to grant the holiday?

A: Practices will have a decision to make whether they will remain open on that day and operate with a skeleton staff. The first thing to note is that, provided employees receive the statutory minimum holiday entitlement (28 days), there is no legal requirement on employers to grant all, or indeed any, public holidays. Similarly, there is no legal requirement to be paid at any particular rate for working on a public holiday.

The position will be governed entirely by the terms of an employee’s contract of employment.  If, for example, the contract specifies that ‘employees will be granted X weeks’ annual leave plus all public holidays’, arguably the employee has a right to the additional public holiday. If, on the other hand, the contract specifies ‘employees will be granted X weeks’ annual leave plus [8] public holidays’, the employee is going to struggle to establish a contractual right to an additional day’s leave.

In respect of pay for those who are required to work on 29 April, the position will depend on the wording of the contract and in particular whether or not there is a contractual right to an enhanced level of pay for working on a public holiday.

Some employers have decided to add in the extra day to the overall holiday entitlement so that everyone has the benefit of the day, regardless of what day they work. Others see the purpose is actually to watch the royal wedding and not just get additional time off. Those practices that do not want to close and wish to operate a skeleton staff may be wise to give these workers a day off in lieu for fairness. Whatever your approach, make sure that it is fair and consistent.

Q: I am a practice manager in a small medical practice in Yorkshire. One of our long-term and valued receptionists is suffering from depression and is now on her fifth month of sick leave. We are sympathetic to her situation but we are concerned as to when she is likely to be back at work. What are the next steps we should take?

A: Dealing with long-term absence can be difficult, as managers try to balance dealing with the employee’s health while also trying to manage the needs of the practice. A good grounding for dealing with absence issues is to ensure that your absence policy reflects dealing with both short and long-term absence so that you and your employee are aware of what the process is and ensure that you refer to this in the first instance.

Employment tribunals always like to look at what is reasonable behaviour, so you may need to take into account what the actual illness is when applying your procedure and whether the employee may be covered under the Disability Discrimination Act.

However, it is reasonable to expect an employee to be in regular contact with you so that you are kept up-to-date on their health and also when a likely return may be possible. I would suggest you call your employee and sensitively have a discussion over the phone about her health and when she thinks she may be fit for work. You may also wish to ask her into the practice for a discussion or, if she is not fit, attend a home visit with another colleague.

Sometimes the longer an employee is away from the workplace the more daunting it is to come back, and this can be a barrier to returning to work. If you think the absence may be work-related, it is essential that you speak to the employee so that you can try and take steps to alleviate any work-related issues.

Before you take any action, seek advice from occupational health as they will be able to help you determine when the likelihood is of the employee returning in the short term, but also if there are any reasonable adjustments you should be making to the workplace or role to accommodate the employee. I would suggest you ask your employee to attend an appointment, ensuring that you get the relevant permission from her. They may also suggest that a phased return back to work would be useful to the employee.

It’s a balancing act of being honest and sensitive to the employee while still effectively managing the staffing of your practice. We would always recommend you seek advice as this area can be particularly complex.

Q: A member of staff in our practice is continuing to shout aggressively at other members of staff in our practice. We spoke to him last week and warned him that a further example of him raising his voice inappropriately may lead to disciplinary action. Yesterday, I had two members of staff in tears because he shouted at them for no apparent reason – what should I do now?

A: You have a duty to protect employees from any intimidating behaviour in the workplace. We all get frustrated at work from time to time but there are ways and means to avoid escalating issues if an employee is unhappy at work. Subjecting anyone to an intimidating environment that is unacceptable may be classed as misconduct (or in severe cases, gross misconduct).

However, as with any potential disciplinary hearing, it is essential that you carry out a full investigation so that you have your facts in place before deciding whether it is in fact a disciplinary issue. Remember, there are always two sides to a story. You may need to speak to all the employees involved and any other witnesses and ask for witness statements for use in subsequent 
disciplinary hearings.

You have already warned the employee that it may lead to a disciplinary hearing if there were further examples of this kind of behaviour – and it would be best practice to have documented this in a file note.

The employee should be invited in writing to attend a disciplinary hearing with sufficient notice and been given the right to be accompanied. This can be another colleague or a trade union representative. Once you have had the disciplinary meeting, the outcome should be given in writing and ensure that the employee has the right to appeal. It may make sense that the person hearing the appeal is not the same person who heard the initial hearing for further objectivity.

We would also suggest your bullying and harassment policy is up-to-date and you may wish to remind staff of the content of this. Some practices also display these within their waiting rooms in order to protect staff from third-party harassment – ie, those who are not direct employees of the practice, such as patients.