Article for Doctor

Question: One of our reception staff is becoming deaf. She is still able to use our telephone on reception and to deal with patients but if her hearing becomes any worse this will become a significant problem. She has been working at the practice for a number of years and is a good employee but I do not think we can continue to employ her. Can I dismiss her on the grounds of capability?

Answer: Because your employee’s hearing is very poor she is likely to be someone with a disability within the definition of the Disability Discrimination Act. Even if she is not covered at the moment, she certainly will be once her condition deteriorates to the point where she is significantly affected in her ability to carry out day to day activities. Remember also that, if she is wearing a hearing aid, the level to which she is affected is judged without taking into account any improvement achieved by wearing the aid

If you dismiss your employee now on the grounds of capability without making further investigations into what she is capable of doing, what support might be available and what adjustments could be made to her job to enable her to continue, the dismissal is most likely to be unfair and, if she has a “disability” you will be directly discriminating against her.

When an existing employee is no longer able to carry out his or her duties because of an acquired disability, the employer is expected to discuss with the employee the extent to which they are affected and to assess the aspects of the job or of the work environment which cause significant difficulties. Part of this assessment may involve obtaining medical evidence so that the employer understands the impact of the condition on the employee and likely progression over the foreseeable future.
Once this assessment has been made, the employer must consider whether there are any reasonable adjustments which could be made to enable the employee to continue in their job. In your case, this might involve considering re-allocating duties, using a modified telephone, installing an induction loop, arranging for your employee to have the assistance of a sign language interpreter or to attend a lip reading course etc…

It is difficult to say exactly how much an employer might be expected to spend on adjustments but for an existing employee, it will always be reasonable to expect the employer to spend as much to retain an employee as it would have cost to recruit and train a replacement. Employers are also expected to make use of the funding facilities available through job centres to facilitate the employment of individuals with disabilities. Such funding could, in this instance, assist with the cost of purchasing the new telephone equipment or of procuring a sign language interpreter.

Once this process has been completed, you may come to the conclusion that no matter what reasonable adjustments you make, the employee will not be able to carry out the job to the standard required and, if there are no other suitable positions available, you may be justified in dismissing the employee.

You have clearly not reached this final stage yet and I would advise you to have a preliminary discussion with your employee to explore with her ways in which she could be assisted in carrying out her duties. As her condition progresses, you will need to go through the process outlined above and to revisit it when significant changes take place.

Question: One of our practice nurses is going on maternity leave shortly. She has been with us for 2 years so she is entitled to take a full year. She has said that she will do so and has asked if she will be entitled to carry over her holiday entitlement to the end of the maternity leave period. Can she do this and if so, how much holiday will she be entitled to take?

Answer: Your practice nurse has obviously been with you long enough to qualify for both Ordinary Maternity Leave (the first 26 weeks) and Additional Maternity Leave. During her Ordinary Maternity Leave, she will continue to accrue her normal contractual entitlement to paid time of including annual leave and Bank Holidays. During her additional Maternity Leave, she will only accrue the statutory minimum annual leave entitlement prescribed in the Working Time Regulations (4 weeks).

If her period of maternity leave “straddles” two holiday years, you may be able to agree with her employee that she takes her leave entitlement for the first holiday year before starting her maternity leave. This would enable her to take some time just before the baby is born and to delay the start of her maternity leave. The balance of the holidays will have to be taken in the holiday year when she returns. This could be used to extend the maternity leave at the other end.

If the whole maternity leave period corresponds to your holiday year, it might not actually be possible for your practice nurse to take her holiday in the appropriate year. This is one of the circumstances where you may need to allow carry over of holiday entitlement into the subsequent year. Alternatively, a practical way of dealing with this, provided it is agreed with your employee, is for her to exercise her return to work early and to immediately take her full holiday entitlement for the year she has been on maternity leave. This way you can avoid having a member of staff with double the holiday entitlement in one year and your employee will get paid for the last part of her leave period.

Question: One of our staff who is responsible for inputting data on our system has asked to work straight through the day from 9.00 to 4.00 pm rather than finishing at 5.00 pm as it suits her better. I am quite happy with this as it simplifies the question of lunchtime cover. Is it alright to agree to this?

Answer: Under the Working Time Regulations, workers are entitled to a 20 minute unpaid break during the day if they work for 6 hours or more. Even if your employee agrees to work without a break, you will be in breach of your obligations as an employer. If, because of the uninterrupted period of work, she developed RSI or other health problems or had an accident at work caused in part by fatigue, the practice could be blamed for allowing her to work without break.

The Working Time Regulations, were introduced as a health and safety measure based on the principle that employees need time off work in order to recuperate and to be safe and healthy when they are at work. If you allow one employee to flout the regulations, this may have an impact on others who may feel under pressure not to take breaks. If such a culture were to develop and an accident were to occur, the practice could face a claim for compensation as it would have failed to abide by its statutory obligations. So the answer to your query is that I would advise you not to agree to this request. Your member of staff should take at least one 20 minute break during the day.


This article was written by Claire Singleton, Partner and head of the Employment Law department at Clarkson Wright & Jakes in Orpington Claire.singleton@cwj.co.uk
Telephone: 01689 887887

Clarkson Wright & Jakes provide an HR helpline to GP practices in Kent and the questions set out above reflect the queries which are dealt with on the helpline. Some of the details have been changed to protect individuals involved.