Ask the experts: flexible working

Our expert panel this week:

One of your salaried GPs wants to cut her hours, but you don't want her to work any less. Are you obliged to allow her to do this? What might she do if you refuse?

Dr Fiona Cornish (FC) In our practice, we'd probably agree that the GP could cut her hours down and negotiate with her. If there's a reason for her decision, we'd be flexible and accommodate. I think the whole basis you operate on in general practice is that everyone has to be happy about the arrangement.

Dr Richard Fieldhouse (RF) There's no choice but to go for the win-win solution. Find out from her not so much what she wants to do – in this case, reduce her hours – but why she wants to do this. You may well have a solution to her problem that she may otherwise not have foreseen.

And of course, explain the situation from your perspective too, and what a reduction in capacity as you perceive it may mean to you.

Dr John Canning (JC) As I understand it, there is no obligation to change a salaried doctor's hours – but any decision should follow a period of discussion and consultation with the doctor concerned. If you refuse, the doctor may leave and pursue a case for unfair dismissal. To defend your position, full, accurate and contemporaneous records must be available of all discussions, correspondence and consultations so as to demonstrate that the decision is not unfair.

Doctors are rarely specialists in employment arrangements and it is vital that advice is taken from employment specialists – for members, advice is available from the BMA.

Alexandra Robinson (AR) There is no right for the GP to change her hours of work, and where a request is made, there is no obligation on you as the employer to agree. However, there are traps for the unwary. Your options will depend on the reasons for the GP's request. Parents, guardians or foster carers of children under 17 – or children under 18 where the child has disabilities – and certain carers of adults have a right to request flexible working and there is a statutory procedure to follow. As an employer, you do not have to agree to this request, but a refusal would have to be justified on specified grounds. 

If the GP considers that you have failed to comply with the procedure, that you cannot show that one of the specified grounds applies or that you have refused a request based on incorrect facts, she will be able to bring a claim in an employment tribunal. Where a claim succeeds, the tribunal may make an order that the application be reconsidered and an award of compensation made.

You should consider exploring whether an alternative arrangement can be agreed or whether you could agree to the reduction of hours on a trial basis.

You have just adapted one salaried GP's hours for flexible work, but you're concerned he's not working the hours you agreed. How do you approach the issue, and if nothing changes what recourse do you have?

FC Discuss with the doctor why he's not doing the hours. If there was some personal or family reason, we'd reduce the hours and simply pay them for what they do. One or two of the partners would sit down in the surgery with the GP and have a formal discussion with the practice manager present as well.

At our surgery, there's a lot of flexibility, but arguably it's more difficult for smaller practices. If a lot of your salaried doctors want to work a minimal number of sessions, it can create fragmentation and loss of continuity of care.

RF Sit down with the GP and ask him how the new arrangement is going. Are there any problems? Is it all working out okay?

Chances are you'll find your answer in a mutually conducive, non-confrontational way. You'll be able to pick up on any misunderstandings and support your colleague to reach the targets you'd both initially agreed to.

JC Although you will have a disciplinary process as part of your employment contracts, it may be better to consider the situation as part of an employee appraisal – not to be confused with professional appraisal. 

If this fails, the disciplinary process may be the only way forward. Take advice, keep documentation and ensure any decision is fair, rational and justifiable.

AR It will be important to find out from the GP why he is not working the hours agreed. An explanation should be sought and the reasons given should be checked.

Generally speaking, lateness without good reason or absenteeism without authorisation are conduct issues and give grounds for disciplinary action against the GP. You should always follow your disciplinary procedure and the ACAS Code of practice when considering taking disciplinary action. 

In most cases, a first offence would not merit dismissal. It may be that a formal warning is more appropriate.

A warning would be issued after a disciplinary hearing at which the GP would be given an opportunity to explain his actions.

If the situation does not improve, it is likely that further disciplinary action would be appropriate and that this could lead to a decision to dismiss.

However, there may be situations where disciplinary action is not appropriate. For example, where the GP's actions are caused by an underlying medical condition, care should be taken as any disciplinary action or dismissal could result in a claim of discrimination under the Equality Act 2010. 

If the medical condition amounts to a disability within the definition of the Equality Act, consideration should be given as to whether any adjustments should be made to the GP's working arrangements.

As a further example, if the GP's actions are caused by temporary problems relating to dependants, the GP may be entitled to time off work.

There may be some situations where the consequences of the GP failing to work the hours agreed are so serious that they justify dismissal without prior warnings, for example, if the GP's actions are putting the safety of patients at risk. A decision to dismiss should only be taken after full consideration of the circumstances within the context of a formal disciplinary procedure, including an investigation and disciplinary hearing.

It is important to deal with this type of issue promptly, firmly and consistently. It is also good practice to ensure that any discussions and disciplinary procedures are well documented.

Two practice nurses approach you for a jobshare. How is it best to negotiate a jobshare agreement? How do you designate new workload, decision-making powers and annual leave?

FC Set up a ‘team' system between the two employees whereby they try to maintain continuity of care and help each other out – for instance, by looking at each other's patients' results when they come in.

If you have two employees who fall pregnant at the same time, this can be a good solution.

RF A really important area for each party and the employer is to understand the other jobsharer's life outside work – kids' ages and schooling, life-partner's work commitments, caring commitments for family members or friends, their faith and what commitments that may entail, if any, where they live and their transportation and their health.

The biggest two reasons for falling out would be pay and workload, so wherever possible try and set those in stone.

JC Contracts will need amending to reflect the arrangement if the two employees already work for the practice, and if they are new employees treat them as two part-timers with two contracts. If one leaves the other can stay, leaving the employer to determine what to do with the vacancy. For example, you could offer it to the remaining person as a full-time position or recruit a new part-timer.

AR Most of the issues for setting up a jobshare will be the same as those for a part-time employee.

It will be important to establish how you and the employees envisage that the job will work on a shared basis, including how the two employees will communicate with each other and with you, workload management and distribution, whether there will be any overlap between them during which they can discuss their work, how handovers will take place, how they will co-ordinate annual leave and training, how periods of absence due to illness or annual leave will be covered and what will happen if one of them leaves.

You should also review and monitor the arrangement periodically to ensure it is working for all parties, and keep a record of meetings where the conditions of the arrangement are negotiated.

Do you have a practice business dilemma you'd like to solve? Email a brief description of your problem to editor@pulsetoday.co.uk with the subject line ‘Ask the experts' and we'll publish advice on it from our next panel.