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Q & A - Staff Matters
Index
ST504 - Sick leave for salaried GP
ST503 - Pre-employment health questionnaires
ST502 - Disability Discrimination
ST501 - Sexual harassment
Q ST504 - Sick leave for salaried GP - We are planning to employ a Salaried GP who has asked for the BMA recommended amount of Sick leave
entitlement of 6 months full pay + 6 months 1/2 pay. The partners are very concerned about this and believe that she is not entitled to this as she will not be employed by the NHS. (01/08/05)
Answer - The NHS regulations set out;
Terms and conditions
63. The contractor shall only offer employment to a general medical practitioner on terms and conditions which are no less favourable than those contained in the "Model terms and conditions of
service for a salaried general practitioner employed by a GMS practice" published by the British Medical Association and the NHS Confederation as item 1.2 of the supplementary documents to the new GMS contract
2003[94].
The
Model Contract in the Supporting Documentation sets out the terms and conditions in relation to sick leave as follows;
Scale of allowances
46. A practitioner absent from duty owing to illness, injury or other disability shall, subject to the provisions of paragraph 48 (calculation of allowances), be
entitled to receive an allowance in accordance with the NHS scale contained in paragraph 225 of the Hospital Conditions of Service.
47. The Practice shall have discretion to extend the
application of the foregoing scale in an exceptional case. A case of a serious nature, in which a period of sick leave on full pay in excess of the period of benefit stipulated above would, by relieving anxiety,
materially assist a recovery of health, shall receive special consideration by the Practice.
Calculation of allowances
48. The rate of allowance, and the period for which it is to be
paid in respect of any period of absence due to illness, shall be in accordance with paragraphs 225–244 of the Hospital Conditions of Service.
The Agenda for Change NHS Terms
and Conditions of Service Handbook January 2005 sets out the following;
Scale of Allowances
14.2
Employees absent from work owing to illness will be entitled, subject to the conditions of this agreement, to receive sick pay in accordance with the scale below (see Section 12 for provisions governing reckonable
service):
- during the first year of service - one month’s full pay and two months’ half pay;
- during the second year of service - two months’ full pay and two months’ half pay;
- during the third year of service – four months’ full pay and four months’ half pay;
- during the fourth and fifth years of service – five months’ full pay and five months’ half pay;
- after completing five years of service – six months’ full pay and six months’ half pay.
14.3 In the event of employment coming to an end, entitlement to sick pay ceases from the last
day of employment.
Your salaried GP therefore would only qualify for the 6 months full pay and 6 months half pay after 5 years of service, unless of course you chose to be more
supportive.
If your salaried partner stays with you for that period of time you could be better off making her a partner at that stage. Indeed some people believe that
employment law now offers such wide-ranging protection to an employee that it is always worth seriously considering the pros and cons of offering a partnership at the outset!
Further Information:
Focus on salaried GPs
CED
Q ST503 - Pre-employment health questionnaires – Can we ask applicants when they are interviewed for a new job about their
health and fitness? (21/03/05)
Answer – This has become a rather difficult question as a result of the
introduction of the Disability Discrimination Act, which was implemented in full in October 2004. Disability in this context is not
limited to obvious serious medical conditions. The Act defines disability as 'a physical or mental impairment which has a substantial and
long-term adverse effect on the ability to carry out normal day-to-day activities'. It is clear that this is open to very wide interpretation.
Best practice in recruitment means finding the best person for the job, based upon the individual’s merits and regardless of any disability. This
is now a legal requirement and failure to follow best practice could easily end in costly litigation.
You are not obliged to treat someone with a disability or health problem more favourably than you would treat other candidates, but you must
make any reasonable and necessary adjustments for disabled individuals. You do not have to employ the disabled person if, after allowing for any
necessary adjustments, he or she would not be the best applicant for the job.
It is unlawful for an employer to discriminate against a disabled person;
- in the arrangements made for determining who should be offered employment
- in the terms on which the disabled person is offered employment
- by refusing to offer, or deliberately not offering, the disabled person employment.
The Act does not prohibit an employer from seeking information about a disability, but the Data Protection Code of Practice on Employment and
Recruitment states that information should not be sought from applicants unless it is necessary to enable the recruitment decision to be made or
for a related purpose, such as for equal opportunities monitoring.
An employer should only ask disability related questions if they are, or may be, relevant to the person’s ability to do the job after a reasonable
adjustment has been made if necessary.
Short-listing on the basis of an applicant’s responses to a medical questionnaire may be discriminatory. Even where there are medical
requirements which must be met, it is considered good practice for employers not to require job applicants to answer a medical questionnaire until after a conditional job offer has been made.
If an employee discriminates against or harasses a disabled employee, the employer will be liable unless he can show that he has taken
reasonable steps to prevent such discrimination. An employee who commits the discrimination or harassment will be liable for aiding an
unlawful act. This will be the case even if the employer is able to show he had taken reasonable steps to prevent the act!
Word of mouth and personal preferences have in the past been the basis for many decisions about new employees, but disability and other
equality legislation make this a very dangerous practice. A structured recruitment protocol may seem much more time consuming and inflexible, but will probably provide:
- a means of improving objective decision making
- useful evidence should you be challenged under the Act.
See
Disability rights commission - Best practice in recruitment and selection ;
Code of practice employment and occupation - 1 October 2004
CED
Q ST502 - Disability Discrimination - I thought that the Disability Discrimination Act only applied to large employers and did not apply
to partners. Am I correct? (21/03/05)
Answer – When the Disability Discrimination Act 1995 first came into
force it applied only to employers with more than 15 members of staff, but from 1st October 2004 it applied to ALL employers.
No practice may now discriminate against disabled employees or job applicants because of their disability, which includes making reasonable
adjustments to the workplace. Since 1st October 2004 the law has also applied to partners in business partnerships.
The Act does not apply only to obvious and serious disabilities. The Act defines a disabled person as one who suffers from "a physical or mental
impairment, which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
Reasonable adjustments are based upon common sense and may vary according to practicability and affordability. Rearranging furniture to
provide better access may be eminently practicable and affordable. Redesigning and rebuilding your premises would clearly be unreasonable. All employers now have a duty to consider these issues.
Allocating some duties to another member of staff or allowing more flexible hours and allowing time off for treatment or rehabilitation may be reasonable.
Employers should consider reasonable adjustments that may be required in the recruitment process.
If an employee or job applicant believes that you have discriminated against them you may be taken to an industrial tribunal which may well
be an unpleasant and costly business.
Further information is available on the DWP web site in Understanding disability.
Also, Partners and the Disability Discrimination Act
and
Disability Discrimination Act 1995; Disability Rights Commission Code of Practice Employment and Occupation
CED
Q ST501 - Sexual harassment – An employee has alleged sexual harassment by a patient. What should we do? (17/02/05)
Answer – You have a duty of care to your employee to investigate this
matter fully and to take appropriate action. You must satisfy yourself that any action you take is adequate to protect the employee in the future, and that he or she is satisfied with this.
Under no circumstances must you ignore the complaint.
It may be possible to protect the employee without asking for the patient to be removed the patient from your list, but you would have to
check that this was acceptable to the employee.
You must also, of course, be sure to make no unfounded allegation against a patient, which could result in a claim for defamation. In
addition you have a legal duty of care to your patient.
You may be able to claim legitimately, if the employee was a doctor or nurse, that their professional relationship had broken down. If the
problem affected another member of staff, or was sufficiently serious, you may be able to claim that it had caused a breakdown in the professional relationship with the registered GPs.
In this situation you could ask the patient to find a new practice or, if the claim was sufficiently serious, you could ask for the patient to be
removed from your list.
Sexual harassment is a very serious issue in employment law and your practice could be at risk if you do not take adequate action.
We would advise documenting your actions very carefully and, since Wessex LMCS cannot give specific legal advice, you may well need to
seek specific legal advice from your practice solicitor.
CED
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