How to solve two common HR issues

How to solve two common HR dilemmas!

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As owners or managers we find that we can’t all be experts when it comes to HR. So you could be forgiven for thinking that it is your practice alone that suffers with a particular situation. Nor is it the norm to stress yourself out with ensuring that you are adhering to policies and procedures and keeping on track with employee management.

One thing for sure is that you’re not alone and practical support can be found, giving you that extra confidence to make the right decisions when it comes to the best thing for your patients, practice and employees. We asked leading HR advisors Peninsula for some case studies to give us a typical insight into the types of dilemmas a dental practice might face and how a solution was found.

Q1) What happens to your staff if you sell your dental practice?

Scenario: Dentist (A) was selling his small country practice to another dentist (B). He had a few people working for him and they have started asking questions about what will happen with their jobs.

The first thing that needed to be established was who was working at the dental practice and what their employment status currently was with dentist A; the reason being that this was an important factor in determining whether TUPE (see below) would apply to all the people working at the practice.

The practice was a small business owned by dentist A. He had a dental hygienist, a dental therapist and a receptionist. They had all been there between two and three years and all of them had contracts.

The detail needed was to understand their employment status, specifically to determine whether they were all required to provide personal service under their contracts; in other words, could they substitute themselves by sending a replacement if they personally were not able to perform their tasks? The receptionist and dental hygienist were expected to do the job themselves as they were paid by the practice, but the dental therapist could send someone else in their place.

One thing for sure is that you’re not alone and practical support can be found, giving you that extra confidence to make the right decisions when it comes to the best thing for your patients, practice and employees.

The dental therapist had a contract for services as opposed to a contract of service. This pointed to the fact that the therapist was self-employed. The question of status depended on a consideration of all the factors, included the understanding of the agreement between the dentist and the therapist, how they were paid, who paid the tax and National Insurance contributions, the degree of control exercised by the practice over the therapist and whether they are treated as an employee, such as providing holiday entitlement, subjecting them to disciplinary procedures, etc.

In this situation, as the dental therapist could substitute themselves if they could not perform the work, worked under a contract for services and invoiced the dental practice for the work they had done, paid their own tax and National Insurance and arranged their own schedule of clients, overall their status was weighted more towards self-employed than worker or employee.

Therefore, dentist A sought advice and was recommended that the rules under TUPE did not apply to the dental therapist and they could quite fairly provide notice to the self-employed dental therapist as per their contract for services.

With regard to the other members of staff, the practice paid their wages and they had contracts of employment. The work was guaranteed and they were expected to personally undertake the work. Meaning that they were obliged to perform the tasks given to them and the practice was under a similar obligation to provide work for them. This, therefore, strongly suggested that they were employees of the dental practice and should be treated as such.

The duties towards the employees (the receptionist and the dental hygienist) were to consult in advance regarding the proposed transfer of the business, therefore avoiding the potential claim of failing to consult.

TUPE is a complex area of law and so with advice, dentist A compiled their information and carried out their consultation obligations. With further support, dentist A followed meetings up in writing and supplied the employee liability information to the transferee, dentist B, resulting in the employees having their employment transferred to the new employer, dentist B.

What is TUPE?

TUPE stands for Transfer of Undertakings (Protection of Employment) Regulations 2006. These regulations protect Employees’ employment, and when a business transfers to another owner, then those employees would have their employment transferred with the business.

This does not apply:

  • In the case of a share transfer, where the shares of a business are purchased but there is no change to the ’employer’ who employs the individuals (i.e. the company)
  • If the people working within the dental practice are not employees, i.e. their connection with the practice would not transfer over to the new employer and neither would the obligation to provide employee liability information about that individual or the duty to consult with them

If TUPE applies then the outgoing owner (the transferor) is under an obligation to consult with appropriate representatives of affected employees about the pending transfer, which includes inviting representatives to be elected, and provide notification of employee liability information to the incoming owner (the transferee). Failure to do this can result in the transferor claiming monies per employee and failure to consult in the employees claiming up to 13 weeks’ pay each.

Answer

Receiving expert support on your statutory responsibilities helps put your staff at ease during changes in ownership at the practice.

Q2) What do you do with a badly behaved, rude and sick-note receptionist?

Scenario: A dental practice had a member of staff who was causing problems. The receptionist had been employed for just over four years, aged 27 and had a two year old daughter. Unfortunately, over a six month period their behaviour had steadily worsened and was starting to affect patients and other members of staff.

The situation started when patients had complained about the employee’s short, clipped answers when they asked questions, and colleagues said that they never smiled and always looked like they didn’t want to be there, slamming down cups and taking long breaks from their desk.

At a formal disciplinary hearing, the receptionist said that the patients wound them up and that they just wanted to come to work and get their job done. They said that they didn’t have to smile if they didn’t want to and as long as the work was getting done, they didn’t see what the problem was. The employee felt that other members of staff were being sensitive by saying that they were slamming down cups. The dentist was not happy with this response and decided to get some advice. In the absence of any acceptable mitigation for their behaviour and with support, the dental practice issued a written warning for rudeness towards patients and colleagues which was to remain on file for 12 months.

Four months later the receptionist had quite a lot of time off work. When they were asked about this, they just said that they had some personal problems but that they were sorted now. The dentist decided to accept this and gave them a chance to improve their attendance. Unfortunately, a month later, the employee had taken another five days’ absence over three separate occasions, stating ‘illness’ and ‘problems with their child’ as the reasons.

The practice’s absence policy stated that when an employee had reached ten days’ sickness, it would trigger an investigation. The practice manager decided that as the employee had taken 11 days off sick over eight separate occasions, an investigation into the level of absence was required.

In response to the investigation, the receptionist said that they had been ill on seven occasions – a mixture of sore throats and headaches, hangover and sickness – but one occasion was when their mother could not look after their child for them.

Based on this investigation, the practice manager looked for advice on time off to care for dependants and, following guidance, accepted that the time taken to care for their child would be classed as unpaid dependant’s leave and further explained to the receptionist that there were options available to them such as requesting flexible working, parental leave or using their own holidays.

In response, the receptionist declined using their own holidays, stating that they needed these during the rest of the year, and refused parental leave as this was unpaid. They did, however, submit a flexible working request to reduce their hours slightly. At the same time, the employee was called to a disciplinary hearing with regard to their sickness absence levels of ten days over seven occasions.

The receptionist accepted that they had been sick a lot, acknowledging that it placed extra pressure on their colleagues when they were off, and that it was their duty to fulfil their contractual hours and promised to improve. The dental practice issued a final written warning which was to remain on file for 12 months; the warning was not appealed by the receptionist.

In respect of the flexible working request, this was considered by the dentist, who sought further advice.

With support and guidance at every step of the way, a successful outcome was achieved for the dental practice and the employee did not appeal, nor did they raise a tribunal claim against the practice.

The needs of the dental practice and what the business and the dentist wanted to achieve were taken into consideration. In this case, the dentist was able to accept the request and provided them with the relevant letters and guidance required.

Shortly after this, the employee took a few more days off sick but this time failed to report their absence correctly as per the practice’s absence reporting procedure and had no reason for not doing so other than they had no credit on their mobile phone. The practice manager was also receiving more complaints from patients about how the receptionist was rude on the phone when they were trying to book appointments.

Colleagues had mentioned that the receptionist came into work in a bad mood most mornings and barged past them and often became argumentative when asked if they had filed patient records. The practice manager sought urgent advice on how to deal with this matter further without putting themselves at risk of a tribunal claim.

The practice manager was advised to have a chat with the receptionist first to see if there were any underlying problems. During the chat, the receptionist said that they just had a lot of problems at home – financial and personal – but wasn’t willing to talk about them.

The practice manager asked if the receptionist wanted to make the time back lost through sickness absence. The receptionist refused and said the manager could not make them work more hours just because they had been sick.

This was, of course, not the intention of the practice manager as they were just trying to offer solutions to help. Unfortunately, the employee did not offer sufficient mitigation to explain why they were behaving in such a way. After further advice, the practice manager was recommended to consider further disciplinary action.

The dentist invited the receptionist to a formal disciplinary hearing in writing. The letter outlined the allegations against the receptionist and gave them the right to be accompanied, as they had done in previous disciplinary meetings. The receptionist declined the right to be accompanied, which was noted in the minutes.

Once again, the issues were put to them, that they were behaving in a rude and objectionable manner at work, towards the patients and their colleagues. The receptionist had already been given copies of statements from their colleagues who had witnessed them being rude and offhand on the telephone, barging past them and that they were in a bad mood most mornings.

Unfortunately, the receptionist, although understanding that they were on a final written warning and that dismissal may be one of the outcomes, refused to say what the problems were, only commenting that they needed to sort their problems out themselves and that they didn’t really want to work but had to. The receptionist failed to show any remorse for their actions at work and even said that the other staff should just let them get on with their work and stop poking their nose in.

Following the responses from the receptionist, the dentist sought further advice as they were concerned that if the employee was dismissed, a tribunal claim might be made. The advisers agreed that a dismissal would be appropriate in light of the statements, the minutes of the meeting and unacceptable mitigation and advised the dentist on dismissing them with notice. The adviser highlighted a clause in the contract allowing the dentist to enforce pay in lieu of notice, so the employee was paid four weeks’ statutory notice pay and left immediately, rather than working out their notice period.

With support and guidance at every step of the way, a successful outcome was achieved for the dental practice and the employee did not appeal, nor did they raise a tribunal claim against the practice.

Answer

Seeking the correct advice on your employee problems can avoid a lengthy tribunal claim.

Peninsula is the leading provider of employment law and health and safety services in the UK. Established since 1983, we have over 25,000 businesses who have already integrated Peninsula to work as part of their HR and health and safety departments.

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