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[email protected] Employment Law Update for
Practice Managers Slide 2 Overview The recruitment process
Disclosure & Barring Service checks Keeping personnel records
Probationary periods Contracts of employment The ideal handbook
Managing performance Slide 3 Slide 4 The Recruitment the Legal
issues Discrimination Data Protection Right to work in the UK Slide
5 Recruitment - Discrimination Protection for job applicants from
discrimination or victimisation in: Arrangements for
interview/recruitment Terms of employment offered Refusal to offer
employment Harassment Slide 6 Recruitment - Discrimination
Protected characteristics: Age; disability; gender reassignment;
marriage and civil partnership; pregnancy and maternity; race;
religion or belief; sex; and sexual orientation Advertisements
Slide 7 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 Slide 8 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 Slide 9 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 Slide 10 Establishing the Right to work in the UK
Checking documents Before employment List A and B Slide 11 The
Recruitment Process The Bolton Pensioners 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. Slide 12
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
Slide 13 The Interview Reasonable adjustments? Venue Timing
Interviewer? Questions Notes/doodles Tests Written Psychometric
Slide 14 The Offer of Employment Conditional Offers? References
Medical examinations Health questionnaires? CRB checks Drug &
Alcohol testing Withdrawing an offer? Slide 15 The Offer of
Employment Check qualifications Ask to see originals and take
copies Permission to work in the UK? Ask for documents Ask everyone
Slide 16 Dos & Donts Disability Reasonable adjustments Asking
health related questions? Age Monitoring Marital status Childcare
responsibilities Slide 17 Dos & Donts 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 Slide 18 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 Slide 19 Case Study Slide 20 Slide 21 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 Slide 22 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
Slide 23 Reform Disclosure and Barring Service Criminal Records
Bureau Independent Safeguarding Authority 1 December 2012 Why is it
necessary? Slide 24 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 Slide 25 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 Slide 26 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? Slide 27
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 Slide 28 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? Slide 29 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 Slide 30 Slide 31 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 Commissioners Employment Practices Code
Slide 32 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 Slide 33 Keeping Personnel Records
GG 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 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 Slide 34
Slide 35 Induction Signed contract of employment? Job description?
Induction checklist? Slide 36 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 Slide 37 Appraisals At least annual
Employees assessment of themselves? Purpose: To discuss performance
To discuss the future To set objectives To discuss training
requirements Slide 38 Case Study Slide 39 Slide 40 Important to set
out the Practices expectations Express Terms Implied Terms
Incorporated terms S1 Employment Rights Act 1996 required terms BUT
note CQC outcome 12 (Workers) Evidence Contracts of Employment
Slide 41 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 Slide 42 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 Slide 43 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 Slide 44 Confidential information Garden
Leave Pay in lieu of notice Restrictive covenants Deductions from
wages Training? Intellectual Property Data Protection Variation
Contractual Benefits? Additional clauses Slide 45 Slide 46 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
Slide 47 Employee Handbooks Make reference to Handbook in Contract
of Employment BUT specify that it does not form part of employees
terms and conditions. Employee Handbooks should be kept under
frequent review to ensure they reflect the current legislation and
best practice. Slide 48 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 Slide 49 Policies &Procedures Other policies
and procedures Disciplinary Grievance Capability / Performance
Management Social Media Whistleblowing
Maternity/Paternity/Adoption/Statutory Leave Substance Misuse Data
Protection Slide 50 Slide 51 Fair dismissals Two elements to avoid
an unfair dismissal: Potentially fair reason for dismissal The
Employer acts reasonably, including following a fair procedure
Slide 52 Fair reasons for dismissal 5 fair reasons (S98 Employment
Rights Act 1996): Conduct Capability Redundancy Contravention of
any enactment Some other Substantial Reason (SOSR) Slide 53
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
Slide 54 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 Slide 55 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 Slide 56
Performance Management Performance management procedure?
Disciplinary procedure? ACAS Code of Practice on Disciplinary &
Grievance Procedures Slide 57 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? Slide 58 Conduct v Capability Cant or Wont?
Was any instruction given reasonably? Is performance or conduct
related to an employees health? Which procedure? What are you
trying to achieve? Improvement = capability Behaviour =
disciplinary Slide 59 Case Study Slide 60 Any questions? Sign up
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