Employment law

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A regularly updated blog covering the latest legal developments.

Helping healthcare employers

  • Helping you make cost-savings
  • Helping you increase efficiency
  • Helping you get processes right

Healthcare legal services specialists

Bringing you the advice, support and guidance you need in today’s uncertain and volatile healthcare employment arena, Hempsons’ healthcare and NHS employment solicitors offer an exceptional depth of knowledge and experience derived from always having worked within the Healthcare and Social Care sectors.

Real world experience

Putting ourselves in your shoes and understanding your problems, our specialist teams include Practitioners who have retrained as lawyers to ensure that our respected legal expertise is underpinned by genuine ‘hands-on’ experience in the ‘real world’ of healthcare. This means we have expert dedicated lawyers, from NHS employment law solicitors to TUPE healthcare lawyers.

Understanding health and social care

With long-standing clients across the entire healthcare and social care employment spectrum and a thorough understanding of NHS problems, needs and re-structuring, Hempsons advises policy makers and is widely acknowledged as one of the leading UK experts in this field.

 Helping with your key issues

  • Driving organisational performance and maximising efficiency.
  • Planning and implementing re-organisation and redundancy programmes.
  • Dealing with absence and performance management issues arising in the last year.
  • Sensitively managing board-level employment issues.
  • Moving away from pay settlements negotiated in less financially challenging times.

 Key services and issues

  • Reorganisation programmes
  • Redundancy arrangements
  • Redundancy selection process
  • Contractual variations including variation of pay agreements
  • Whistle blowing and discrimination claims
  • Executive performance and terminations
  • Corporate transactions
  • Equal pay
  • TUPE
  • Employee relations and industrial action
  • Employment claims and disputes
  • Performance and disciplinary issues
  • Wrongful dismissal and breach of contract claims
  • Data protection
  • Outsourcing /insourcing /reprovision
  • Take-overs /mergers
  • Training of HR teams
  • Pensions
  • Diversity/equality issues
  • Employment tribunal claims at all levels
  • Fit and proper persons test.

Publications

  • Accountable care and new care models: Understanding the workforce implications – This guidance is part of a range of documents produced by Hempsons to assist your organisation in delivering the aims of Next Steps on the NHS Five Year Forward View (March 2017) and local STP plans.
  • Employment Status Guide 2016 – in conjunction with Charity Financial Group – this guide explains the fundamental principles behind employment status, the employment relationship, and the issues you should consider when dealing with employees. The guide is intended to assist anyone with responsibility for HR issues in a charitable organisation.

Testimonials

They are absolutely brilliant. They give sound HR advice and when they say they’ll get back to you they always do.” (Chambers UK 2013)

This team wins plaudits for its swift response times and broad experience.” (Chambers UK 2011)

Case studiesView all

Charity merger: National Childbirth Trust

We advised the National Childbirth Trust on its merger with the Midwives Information and Resource Service (MIDIRS). We advised the National Childbirth Trust on this merger including negotiating and concluding a framework merger agreement.

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PeopleView all

NewsView all

  • 24 hour NHS retirement – piece of cake, right?

    Afraid not! The process for 24 hour retirement from your NHS contract can be complex and will take quite some time. Faisal Dhalla, a partner in the specialist commercial dental team at Hempsons shares his tips and advice for ensuring your 24 hour retirement goes smoothly.

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  • Being Paid to Sleep? Royal Mencap Society v Tomlinson-Blake

    In Royal Mencap Society v Tomlinson-Blake the Court of Appeal has determined that workers who “sleep in” at their workplace are not entitled to receive national minimum wage for periods when they are asleep. This is because time spent asleep in this way is properly characterised as time when an employee is ‘available for work’ rather than time when they are actually working.

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  • Brexit – the impact on employment law

    EU legislation and case law has had a huge impact upon UK employment law and so it is very likely that BREXIT will have an impact on employee protection and employee rights but how much of a change are we likely to see?

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  • Can a disability account for bad behaviour?

    The recent Employment Tribunal decision of Wheeley v University Hospitals Birmingham NHS Foundation Trust serves as a timely reminder that where conduct issues are said to arise from an underlying mental health condition employers should be cautious of departing from medical opinion.

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  • Can an Investigation be Too Thorough?

    In NHS 24 v Pillar the Employment Appeal Tribunal (“EAT”) has overturned a Tribunal’s decision that a disciplinary investigation was too thorough and it was unfair to include details of prior incidents which had not resulted in disciplinary action.

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  • Care package retenders: TUPE or not to TUPE?

    The Employment Appeal Tribunal examined the transfer of care of an individual (CE) between two service providers to determine whether his carers TUPE transferred. They did not - they were found not to be part of a team whose “principal purpose” was CE’s care. What steps should you be taking in advance of potential transfers?

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  • Consideration of reasonable adjustments as part of a performance management process – a helpful reminder!

    The recent Employment Appeal Tribunal (‘EAT’) case of South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley serves as a reminder to employers to make reasonable adjustments during a performance management process and also to give them a chance to work. It also neatly summarises the extent of the duty to make reasonable adjustments.

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  • Disciplinary hearings – should we go ahead without the employee?

    This is a regular and vexing question. It usually comes about after a convoluted experience of delays in arranging a disciplinary hearing. The EAT in Nabili v Norfolk Community Health & Care NHS Trust have considered the issue further. The question is partially answered by examining this: would the employee’s attendance be futile in understanding the disciplinary case.

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  • Does the recent ET Uber decision necessitate a U-turn on staffing arrangements for gig economy businesses?

    The recent Employment Tribunal case Aslam and others v Uber BV and others determined that Uber drivers were not self-employed contractors, as Uber claimed, but rather fell within the statutory definition of “worker” meaning that the drivers were entitled to:- paid holiday; the national minimum wage (£7.20 per hour) and protection against whistle-blowing detriment/dismissal (amongst other things).

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  • Dress codes and headscarves

    Dress codes and religious clothing have been considered by the European Court of Justice (CJEU) in two cases recently and unfortunately their guidance is not as clear as it could be. The French case of Achbita v G4S Secure Solutions was reported as supporting a ban on headscarves but the actual outcome was slightly more complicated than that. The Belgian case of Bougnaoui v Micropole SA reached a slightly different decision, refusing to uphold a ban, but the case emphasised just how hard it can be to enforce a supposedly neutral dress code.

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  • Dress codes, headscarves and discrimination

    The issue of dress codes and religious clothing has featured in the news recently, following the case brought be a Belgian receptionist in Achbita v G4S Secure Solutions. The case was reported as supporting a ban on headscarves, but the actual outcome was slightly more complicated than that.

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  • Drug driving – a new offence

    The new offence of driving under the influence of drugs came into force on the 2 March 2015. The offence states that it is illegal to drive or be in charge of a motor vehicle whilst under the influence of specific controlled drugs (including illegal, prescription and non-prescription) above a specified limit.

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  • Farewell to ET fees, but what next?

    For the last four years, an employee wanting to take a case to an employment tribunal has had to pay a fee of up to £1,200. For many lower paid employees – or where relatively little money was at stake – this fee may have been a deterrent to starting action...

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  • GDPR Your questions answered

    25 May 2018 marked the introduction of the new General Data Protection Regulation in the UK in the form of the Data Protection Act 2018 and we have been answering many clients’ HR-related questions on the new legislation.

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  • Health start-ups: Using doctors to provide services for your business

    So you have a good idea for a new healthcare business and have gone so far as to develop a business plan and test the waters with potential patients and suppliers. But now you need to know a little bit more detail about legal, financial and commercial issues to move the project on – from drawing board to board room as they say.

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  • Healthcare newsbrief: Winter 2017 edition now available

    Welcome to the winter edition of Hempsons’ Healthcare Newsbrief. Many of you will be reading this at the NHS Providers conference where many of the issues we are writing about – from moving towards digital records to the issues around moving to an accountable care organisation – will be either discussed or on the minds of delegates...

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  • Hincks v Sense Network

    It is commonly accepted that when a person applies for a job, they will usually be asked to provide a reference from their previous employer. By the same token, employers are usually willing to provide a reference for an employee leaving their employment and doing so is standard practice.

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  • Holiday pay update

    Over the last few years the courts have increasingly ruled more types of payments ought to be included in holiday pay calculations. However, the prevailing view has been that only compulsory overtime need be included...

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  • In-depth investigations are key to fair disciplinary processes

    The recent case of Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust demonstrates the importance of a fair and thorough investigation process in disciplinary cases where the allegations are serious and could consequently have career limiting implications for the employee involved.

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  • Poor Performance and Misconduct – Navigating the Minefield

    “No man is an island” - this phrase is particularly pertinent in the workplace, given that many of us depend on the skills, experience, expertise or manpower of employees in order to succeed. Whilst employing staff is positive and beneficial for the most part, it also involves issues and potential liabilities, which can be difficult to manage especially for smaller employers with limited resources. This article looks at two common employment scenarios and gives guidance on how best to manage them successfully.

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  • Reilly v Sandwell Metropolitan Borough Council (2018)

    Would it be fair to dismiss an employee if they had failed to disclose a relationship with a person convicted of serious criminal offence (even if this was not necessarily a breach of an express term of the employee’s contract)? This question was addressed by the Supreme Court in the case of Reilly v Sandwell Metropolitan Borough Council (2018) UKSC 16. The Supreme Court also considered the standard approach to the reasonableness of a dismissal, the Burchell test.

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  • Sexual harassment in the workplace

    Private medical or dental practices are often small businesses that involve close working relationships between staff and close contact with patients. Consequently they are at a higher risk of receiving difficult allegations of sexual harassment.

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  • Sleep-ins – should they form a part of the National Minimum Wage calculation?

    The long awaited appeal by Mencap has now been considered by the Employment Appeal Tribunal (EAT). This appeal is based on the way care is provided, predominantly in the social care sector but also has an impact on healthcare providers too. In recognition of the importance to the sector, this appeal was heard by Mrs Justice Simler, the President of the EAT, and brought together three separate appeals. Mencap operate their sleep-ins in common with most social care providers and pay a mostly flat rate sleep-in payment. They were unsuccessful in arguing that the hours during sleep-in shifts were not to be taken into account in calculating the National Minimum Wage.

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  • The delicate balance – ill health dismissals

    Deciding when is appropriate to terminate the employment of an employee who has been long term absent due to ill health is a difficult decision. The Court of Appeal’s decision in O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145 provides some useful guidance on this issue

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  • The National Minimum Wage, Sleep-In Shifts and the Social Care Sector – Update on HMRC Enforcement

    On 26 July 2017, HM Revenue and Customs (‘HMRC’) suspended enforcement action against employers in the social care sector in relation to the National Minimum Wage (‘NMW’)/National Living Wage (‘NLW’). This decision followed on from the decision in the Mencap case (Focus Care Agency Limited v Roberts, Frudd v The Partington Group Limited, and Royal Mencap Society v Tomlinson Blake, 2017). The decision that a care worker could be “working” whilst asleep highlighted a significant liability in the care sector, where workers traditionally have been paid a fixed sleep-in allowance, and were often paid below the NMW/NLW.

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  • Unfair dismissal – a sobering case for employers?

    In a case that is of particular relevance to healthcare providers, who have to balance the difficult issue of complying with their duties towards patients and their obligations to staff, an Employment Tribunal (ET) has found that an NHS trust unfairly dismissed an employee for smelling of alcohol on duty. The case provides a helpful reminder for employers on the steps to take when handling concerning staff behaviour to avoid costly litigation.

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  • Update – Tax changes to termination payments

    Back in the 2016 Budget, the government announced that from April 2018, it would “reform and simplify” the taxation of termination payments. Following a technical consultation, the reforms expanded and now aim to "clarify and tighten" (i.e. increase) the taxation of such payments.

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  • Voluntary overtime v. right to holiday pay

    Regular voluntary overtime be taken into account when calculating holiday pay. The EAT has confirmed in Dudley Metropolitan Borough Council v Willetts and Others that “remuneration linked to overtime work that was performed on a voluntary basis could be included in normal remuneration for calculating holiday pay”.

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  • What does vicarious liability mean in practice?

    It is important that practitioners who are involved in management of employees whether in private practice or NHS practice are aware of the risks of vicarious liability. In private practice, the Practice (and partners) could be held vicariously liable for the actions of salaried GPs and other employees or workers. As the cases below demonstrate courts will apply the principle broadly and it is not just reserved for traditional employment relationships.

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  • When does notice take effect?

    The Supreme Court handed down a judgment last week in the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood confirming that where a contract is silent on when notice is deemed to be given, notice takes effect when it is actually received by the employee and they have read it, or had a reasonable opportunity to do so.

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  • Zero hours and annual leave

    Many employers choose to calculate holiday pay for their zero hours workers as 12.07% of their normal pay. A recent decision by the Employment Appeal Tribunal, Brazel -v- The Harpur Trust (2018), may lead to some employers rethinking this.

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