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Legal lessons - Practice nurses' misconduct outside work

Advice on a tricky practice problem from barristers Michael Salter and Chris Bryden

Advice on a tricky practice problem from barristers Michael Salter and Chris Bryden

The Situation

My Practice Nurse has just been convicted of both speeding and possession of Class A drugs. I have now found out that another nurse has a spent conviction for shoplifting that they did not reveal to me. What steps can I take?

The Advice

These two alternatives show the range of "misconduct" that can occur outside the workplace. Sometimes conduct outside work can affect the performance of the contract of employment.

The first of these offences, speeding, will not normally affect the contract unless, for instance, the nurse had been disqualified from driving and could therefore no longer drive, driving being necessary for the job.

If this is the situation then the Practice should consider whether there is another role that the Nurse could undertake, say an office based role. If not then the Practice will need to consider instigating disciplinary procedures by was of letter setting out the misconduct and the effect that the Practice is considering dismissing the employee as there are no other suitable alternatives available to keep the Nurse.

The same principles apply to the alternative offence of possession of drugs. Normally an offence of possession of drugs is unlikely to amount to a fair reason to dismiss an employee without there being any thing else against them. Of course if drug use is involved, affecting the standard of the employee's work, then the Practice could consider disciplinary action owing to the failure to reach acceptable standards demanded. Notwithstanding this however, in the light of the sensitive nature of the nurses' role, it may be felt that a conviction for possession of drugs is so serious that disciplinary action can be commenced regardless of any impact it has on their work. Indeed the statement of terms and conditions can include a standard term that states what sort of offences will result in disciplinary action, including summary dismissal for gross misconduct.

It is likely to be desirable that one of the offences listed will be criminal convictions, or specific convictions including possession of drugs.

As far as the second nurse is concerned, as the conviction is spent, meaning it is sufficiently old that no account can be taken of it (the exact length of time for a conviction to become "spent" is dependant on the sentence that was imposed). A spent conviction is not a valid ground for dismissal. Equally an employer is unable to dismiss on the basis of an undisclosed spent conviction, generally speaking. However, nurses (and for that matter medical practitioners) are excluded from this law. Therefore there is an obligation to mention the conviction at the time of employment. Failure to do so can be relied upon as forming the basis of disciplinary procedures, should the Practice consider that this failure to reveal the conviction is so serious that such steps should be taken.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: Legal points are provided for information and discussion only and are given without obligation. For specific legal advice consult your solicitor

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