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How to... deal with problem staff members

Consistency and clarity are the golden rules GPs must abide by in disciplinary procedures, says Rehan Pasha.

Like all employers, GPs practices - even the smallest - are required by law to follow certain minimum procedures when dismissing an employee.

This is regardless of whether the employee is being made redundant or being dismissed because of misconduct or because they are not carrying out their job adequately.

Even if the staff member has behaved very badly, failure to follow these procedures could lead to an unfair dismissal claim and to an employment tribunal ruling that the practice must pay enhanced compensation.

Practice disciplinary procedures
The importance of having a clear written disciplinary procedure cannot be overemphasised. It enables the GP employer to define misconduct - for example, persistent lateness for work without explanation, being discourteous to colleagues or patients - and gross misconduct - for example, fraud, falsification of documents or theft. Setting out the standards that you expect from practice staff also makes it more likely that they will comply and means that the practice will be on safer ground when dismissing or disciplining those breaching those standards.

Alleged misconduct
You should inform the staff member in writing of any allegations against them. Be as precise as you can and explain why you believe the employee may have been involved in misconduct, such as it being seen by a third party.

Depending on the seriousness of the allegation, you should allow a period of at least two to three days between informing the employee in writing and holding the required disciplinary meeting.

Disciplinary meeting
At any disciplinary meeting, an employee has the right to be accompanied by a representative of their trade union - even if the practice does not recognise the trade union - or by a colleague. The representative can ask questions on the employee's behalf but may not answer questions for them. At the meeting listen carefully to what the staff member has to say, ask any questions - particularly about any mitigating factors - that you believe appropriate.

In all but the most complicated of cases, the practice should be able to make a decision and inform the employee what you have decided shortly after this meeting. To justify dismissal, you only need to be satisfied on the balance of probabilities - more than 50 per cent sure - that the alleged misconduct took place. Make a written record of your decision and send it the staff member, pointing out that they have the right to appeal.

Right of appeal
The right to appeal should be to a more senior person than the individual who chaired the disciplinary meeting - for instance, to a GP partner if the practice manager chaired the disciplinary meeting. Ask the employee to confirm in advance of the appeal hearing why they have appealed. For example, the individual may accept that their behaviour amounted to misconduct but believe that the sanction imposed is unduly harsh. Or they may continue to deny the misconduct.

The appeal meeting is an opportunity for the staff member to try to persuade their employer to rescind the disciplinary action it is intended to take.

Normally a decision on appeal is final.

Disciplining, not dismissing
If you are disciplining a staff member for poor performance, you should outline exactly what improvements you expect from the individual and over what period of time. You should offer reasonable assistance to enable them to reach an acceptable level of competence. Hold a review meeting at the end of the period you set to assess whether the staff member's performance has improved sufficiently. If it is still poor, you can then consider whether to dismiss them following another disciplinary meeting and subject to their right to appeal.

Be consistent
Before imposing disciplinary action for a particular type of misconduct, consider whether other employees have been disciplined for similar misconduct in the past and what sanction was imposed.

While it is not good practice to discipline staff members formally for minor matters where a quiet word with the individual would suffice, practices should be wary of not following the minimum statutory procedures for serious matters. If certain types of misconduct have not resulted in disciplinary action in the past, your staff could be forgiven for believing the practice turns a blind eye to the behaviour concerned. This not only increases the likelihood of the misconduct continuing. It will also make it harder for you to justify taking disciplinary action if matters come to a head and you have to intervene.

  • Employment law specialist Rehan Pasha is a partner at solicitors Aaron and Partners in Chester, www.aaronandpartners.com
  • For detailed information visit the Advisory Conciliation and Arbitration Service (ACAS) website at www.acas.org.uk

Staff discipline

  • Review your practice's staff policy. Does it adequately set out the standards you expect staff to abide by?
  • Inform any individual concerned of any allegation of misconduct made against them.
  • Remember that staff members are entitled to representation at any disciplinary meeting and have the right to appeal against any decision.
  • If you are disciplining an individual for poor performance, make clear to them what they need to do to improve and over what time period this should happen.
  • Do not risk unfair dismissal claims and having to pay enhanced compensation by failing to follow proper procedures.

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