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Laura Pearce

Laura Pearce

Laura Pearce is a senior solicitor at JFH Law advising dental practices and dentists on a wide range of matters, including employment law and HR issues, contractual and commercial disputes, professional disciplinary, specialist list applications and regulatory matters including CQC inspections. 
 
Laura graduated from Northumbria University in 2004. She gained her experience at two National firms before joining JFH Law in March 2015. 
 
You can visit JFH Law’s website at http://www.jfhlaw.co.uk/
 
Or follow us on twitter at https://twitter.com/jfhlaw
08
Aug
2
Posted by on in The Tooth Counsel

At some point during your professional career you will no doubt have been faced with an unpleasant patient; you may have been unlucky enough to come across a few. However, in what circumstances can you refuse to treat them?

Alternatively, what if a patient refuses to be treated by you or someone in your practice? What if the reasons for such a request are or could be discriminatory?

At a time when instances of every day discrimination and sexism are rife in all walks of life, it is not hard to see why some dentists and doctors feel like they are walking on egg shells. This week BBC Radio 4 Today Show presenter John Humphrys, asked the tennis player Johanna Konta a series of questions regarding her origin, culminating in, ‘So, what are you?’; questioning whether she was truly British. Johanna Konta has represented Great Britain at the Olympics and the Fed Cup. She has been a UK citizen for almost half her life. Chancellor Philip Hammond, has been criticised for allegedly saying driving a train is so easy 'even a woman can do it'. We’ve even seen uproar over the “sex” of a fictional character with two hearts.

But is there ever a situation where someone’s nationality or sex can affect their ability to perform their role? 

Refusing to treat a patient

With so much regulation in place and a fear of patient complaints being escalated to the GDC, you may feel as if patients hold all the power. However, there are situations when you are entitled to refuse to treat a patient. Below are 6 legitimate reasons for refusing to provide treatment:

1.   When a patient questions your clinical judgment. If a patient questions your clinical judgment or expresses a lack of confidence in your abilities, we would recommend you stop treatment immediately. At this point explain to the patient that it is important they have confidence in you as their treating physician and that to carry on treating them would be unethical. Try not to take this personally, and certainly avoid arguing the toss with the patient; this could result in a complaint against you. Everyone has different views and personalities and whilst you and the patient may clash, there will no doubt be another dentist who gels with the patient.

2.   When there has been an ‘act of God’ If a dentist is hospitalised or suspended, or there is an emergency, such as a flood in your practice, it will be impossible for you treat the patient at that time. Keep the patient updated and make alternative arrangements where possible, otherwise the patient may go elsewhere.

3.   When a patient fails to pay a bill or continuously misses appointments If a patient fails to pay bills or continuously misses appointments, then you should give them a warning that this conduct will not be accepted and future similar conduct will result in them being removed from the Practice. Put information on your website regarding the circumstances in which treatment may be withdrawn.

4.   When there is a conflict of interest. Whilst, this is unlikely to arise that often in a dental practice, there may be circumstances, for example where a patient is pursuing a claim against your colleague, where it would not be appropriate for you to treat. If the patient comes to you and you know about the claim, there could be a perceived conflict and it would be better not to treat the patient at all. However, if you are part way through treatment, you should highlight to the patient that you are aware of a potential conflict and let the patient decide whether they wish for you to continue treatment.

5.   When a patient is violent or abusive If a patient is violent, or even threatens violence, to you or any of your staff, depending on how serious this is you may wish to call the police. In terms of treating the patient in the future, you should assess the situation and why the matter escalated. For example, was it honest misunderstanding that has got out of control, or has the patient been violent for no reason? Do you think the patient can be managed in the future without putting your staff members at risk. The more serious the incident the more justification you will have for refusing treatment. Write to the patient and confirm that you will no longer be treating them and, if you are an NHS practice, contact the NHS Commissioning Board.

6.   When a patient has complained. You should avoid the temptation to refuse treatment in these circumstances as it could result in a further complaint. However, if the complaint is about your clinical treatment or is shown to be entirely unjustified or malicious you can follow the process in point 1 above.

Patient’s freedom of choice

Generally speaking, a patient has the right to choose which dentist provides them with treatment, just as you are entitled to choose who supplies your materials for your practice. Therefore if a patient requests a specific dentist to provide treatment you should seek to accommodate that request.

What if the request to be treated by a specific dentist is racially motivated? You have no obligation to treat a patient in those circumstances except in an emergency. Bear in mind, the patient also has to consent to treatment, and they can refuse treatment on bigotry grounds if they wish.

However, there is a grey area in all this. What if a female patient requests a female dentist on religious grounds? Or a Polish patient requests a Polish dentist as a result of not speaking English? In these circumstances, we would recommend accommodating such requests where possible, to prevent allegations of discrimination against you.

You should create a practice policy for dealing with such requests so staff know what to do and can identify when such requests might be reasonable.

If you need advice or assistance in dealing with a difficult patient, you can contact Laura Pearce on 0207 388 1658 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce, Senior Solicitor

©Laura Pearce, GDPUK Ltd, 2017
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18
Jul
0
Posted by on in The Tooth Counsel

Since the Central London employment tribunal handed down its decision in the Uber case on 28th October 2016, the courts have been awash with claimants seeking to gain worker status. Pimlico Plumbers and CitySprint have both had judgments against them, and claims against Deliveroo, Amazon Logistics and Hermes are all in the pipe line.

But how is this relevant to the dental profession?

Whilst associates enjoy self-employed status for tax purposes, this is an arrangement with HMRC; not the legal system. Since the Uber case it is clear the courts are cracking down on false self-employment and so dental practices need to be live to this issue.

Failing to identify a person’s status from the outset will be a costly mistake to make.

Here we take a look at the recent judgments in the Pimlico Plumbers and CitySprint cases and explain what impact they have on worker status in the dental profession.

Definition of worker

What are the benefits of being classed as a worker? Workers have rights such as the national living wage, holiday pay, statutory sick pay and the right to pension auto enrolment, whilst still retaining the flexibility of a self-employed person.

The courts will ask three questions to determine if someone is a worker:

  1. Must the person personally provide the service or can they send a substitute?
  2. Is the company obliged to provide work and is the person obliged to accept it?
  3. Was the status of the “employer” under the contract that of a customer? 

Over the years the dental profession has changed considerably. Increased regulation has meant that practices must have more control over how their associates work. Corporates seek to have a unified model of delivering dental services under a brand name. Practices more generally need to ensure they meet targets provided by NHS contracts.

The net result has been that associates have less control over their working practices, and have more obligations placed on them. This is likely to elevate them from self-employed into the category of worker.

Recent decisions

Pimlico Plumbers – sending a substitute

At the very outset of the judgment the Court of Appeal stated, The case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker’. A model that should sound familiar to most dentists.

The main focus of this appeal was the Tribunal’s finding that the plumber was obliged to perform the services personally.

The primary argument put forward by Pimlico Plumbers was that the plumber in question had a right to send a substitute and as such he was not engaged to perform the services personally. However, the Tribunal’s findings on this point was that the plumber could not send anyone he wished to do the job, he had to send another Pimlico Plumber. As such there was not an unfettered right to send a substitute at will, but instead the position was more akin to a shift swap.

The Court of Appeal recognised three types of relationship:

  1. Persons employed under a contract of service (worker);
  2. Persons who are self-employed, carrying on a profession or a business undertaking on their own accord;
  3. Persons who are self-employed and provide their services as part of someone else’s business or undertaking.

It is this last category that the plumber, and also dentists, would fit into.

The Court of Appeal went on to define the requirements of personal performance and set these out as follows:

  1. An unrestricted right to send a substitute to do the work is inconsistent with an undertaking to do the work personally. This is simple to determine and pretty obvious by all accounts;
  2. A conditional right to send a substitute may or may not mean there is personal performance; it will depend on the conditions placed on that right. In other words, it will depend on nature and degree of any fetter on the right. This was broken down further into:
    1. A right to send a substitute only when the contractor cannot perform the services suggests the contract is for personal performance;
    2. A right to substitution limited only to one who is suitably qualified, is inconsistent with personal performance;
    3. Where the right to substitution is dependent on the other party’s consent suggests the contract is for personal performance.

The Court of Appeal found that as the plumber could only send another Pimlico Plumber to undertake the work, this meant he had to perform the services personally and was therefore a worker.

In a dental practice the right to substitution is often limited to the circumstances set out in a. to c. above, meaning a court is likely to find that they are engaged to perform the services personally.  However, it is important to bear in mind that this conclusion has not yet been tested by the Courts. Arguably the very nature of the provision of a medical service should be given special status on the basis that it is the patient’s needs, not the employers that must be taken into account. There are many circumstances where it would not be acceptable for a substitute to be sent, such as when a dentist is dealing with a patient with special needs.

CitySprint – controlling performance

In this case the courier had a contract that purported to be a self-employed contract. It had terms such as:

  • The Contractor agrees and warrants that he is a self-employed contractor and is neither an employee or worker;
  • The Contractor shall…provide the Services using reasonable case and skill and use his best endeavours to promote the best interests of CitySprint…the Contractor has discretion to determine the manner in which the services are performed at all times;
  • The Contractor warrants and represents that he has read and understood the Information Booklet;
  • The Contractor may at his own cost provide a substitute to perform any particular job. However, if that substitute is not a person or an entity who or which has itself already entered into a Tender Agreement with CitySprint the substitute shall be a person or entity this has the required insurance cover, knowledge, skills and ability.

Not too dissimilar from terms found in many associate contracts.

The courier accepted that if these terms were genuine then she would be self-employed. However, she asked the tribunal to look at the true relationship. It should be noted the courier had signed to confirm acceptance of the self-employed contract and had been registered as such for tax purposes.

It is well established that the Courts can look behind the contract to determine what the true relationship is between the parties. The Tribunal in this case re-iterated that the threshold for doing this is low; a firm reminder therefore that the terms of the contract should reflect the reality of the situation.

In this case the Tribunal held that there was sufficient evidence to show that the contract did not reflect the true relationship, and that the courier was in fact a worker for the following reasons:

  • The Tribunal found that the courier did not have ‘discretion to determine the manner in which the services are performed at all times’. The courier had a one day training session where she was instructed on things like how to greet the customer and what to do if someone was not home. This showed an element of control by CitySprint as to how the service was to be provided.

Whilst clinical work will naturally be at the associate’s discretion; if a practice has strict polices in place in relation to how long each patient must be seen for, what documents must be completed for each patient visit, complaints procedures the associate must abide by or even compulsory training sessions and staff meetings, this could show an element of control.

  • When looking at whether the courier had to provide the services personally, the Tribunal found that even though there was a right to send a substitute the reality was that the circumstances when she could were so small that she was in fact engaged to perform the services personally.

Associates very rarely send a substitute as patients expect to see their own dentist, and have often been recruited due to their specific skills. As stated in the judgment ‘the legal test is not whether there is a valid substitution clause but whether the claimant was contracted personally to carry out the work’.

  • Finally, the tribunal found this was not a client/customer relationship; the courier was not in business on her own but part of the CitySprint business. They made this determination on the basis that the courier had to work when she said she would, when working they are directed as to what they will do, they have procedures to follow, and are part of the ‘family’ of couriers.

Dentists who have set hours, are told what patients they will see, follow practice procedures and are advertised on the dental practices website as part of the services the practice provides are likely to be deemed to be working as part of the practice not independently.

Conclusion

In issue 34 of our dental bulletin we set out how the Uber judgment would impact on associate contracts and these recent cases only strengthen our view that many associates legally will be defined as workers.

Of course, until an associate decides to test their status in court, the status quo is likely to remain as  many associates enjoy tax benefits of being self-employed. That being said, it is perfectly possible that whilst an individual is deemed self-employed by HMRC, they are deemed to be a worker for the purpose of their employment status; an associate may well be able to have their cake and eat it. Employers need to consider this issue very carefully; failure to do so may result in a hefty bill to pay.

That is not to say you cannot retain the self-employed relationship between you and associates. With well drafted contracts tailored to your business you can ensure that you are protected. Remember; one size does not fit all.

If you need advice on the status of anyone in your workforce or need assistance with re-drafting contracts or documents to ensure associates are truly self-employed, please contact Laura Pearce on 0207 388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it." style="text-decoration-line: none; transition: color 300ms; color: rgb(247, 180, 51); outline: none !important;">This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce, Senior Solicitor

©Laura Pearce, GDPUK Ltd, 2017
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09
May
0
Posted by on in The Tooth Counsel

There is a feeling amongst dentists on forums such as this that the GDC has become too heavy handed when dealing with alleged misconduct cases.

In March 2017 alone, of the 29 misconduct Fitness to Practice cases heard by the GDC, 9 dental professionals were suspended, 4 had conditions placed on them, 4 were erased and 2 were reprimanded. There were also 4 cases with the outcome still pending. That means of the 25 cases concluded 76% of dental professionals were found to have committed misconduct.

Compare this with the GMC figures for the same month, there were only 6 misconduct Fitness to Practice cases of which only 2 had findings of impairment made against the doctor. Considering there are more doctors than dental professionals registered to practice in the UK, the difference is significant.
 
In November 2016 the GDC introduced Case Examiners in an attempt to help streamline the Fitness to Practice process. Their role is to consider whether a referral should be made to the Practice Committee. Given this new stage is still in its infancy, we are yet to see what impact this will have on misconduct cases within the dental profession. However, it is hoped that as cases will be considered by a lay member and a dental professional, a more proactive approach will be taken at an early stage. This is the approach taken by the GMC and the low numbers of misconduct cases being referred for hearings could be a positive sign of things to come.

Unfortunately there are rarely any consequences for patients who make spurious complaints which are not upheld; however, the same cannot be said for the professional. The time, stress and expense of misconduct hearings can have a devastating effect. Many feel that their stress is exacerbated by an unsympathetic and heavy handed regulator.

If you are facing a misconduct investigation, it will no doubt be a worrying period for you.  It is important to understand from the outset what legal test the GDC will be applying. This way you can properly prepare your defence and gather evidence from an early stage. Proper presentation at the start may well ensure that the Case Examiner determines that a case should be closed at an early stage. If the case should proceed to a hearing you will be armed with the necessary knowledge to put forward the best possible defence, which in turn could help with any later appeals to the High Court.

What test does the Professional Conduct Committee (PCC) apply when assessing Fitness to Practice?

The Test

The test the PCC applies is twofold;

1.       Has misconduct taken place?

2.       Is the dentist’s fitness to practice impaired?

Whether or not misconduct has occurred will depend on the allegations raised and the evidence produced and as such this element of the test will be fact sensitive. The PCC must decide whether ‘it is more likely than not’ that the allegations took place, which unfortunately is a relatively low threshold. However, even if any of the allegations are found to be proved, case law has established that the conduct must be ‘serious’ before moving to the next stage of the test.

Tip. Is this a potential area that can be challenged? Are you able to obtain evidence or refer to previous cases that show the misconduct is not serious and therefore no further action should be taken?

When considering if a dentist’s fitness to practice is impaired, the PCC should look at the dentist’s current fitness to practice? It will not be sufficient to show historic impairment, unless the misconduct is so grave as to warrant it.

It should be noted that impairment is not assessed against any established standards of proof; it is a matter of judgment for the PCC committee. However, a failure to comply with the fundamental standards laid out in the ‘Standards for Dental Professionals’ is likely to lead to a finding of impairment.

Tip. Even if you do not accept the allegations against you, you should consider what actions you can undertake to show your fitness to practice is not impaired. For example, attending training courses, amending your policies and procedures, or being mentored/shadowing another dental professional. This should not be seen as an admission of guilt but a recognition that professionals can always seek to improve. 

The Sanctions

If impairment is found, the PCC will go on to decide which of the following sanctions to impose:

·         Reprimand;

·         Conditions;

·         Suspension;

·         Erasure.

 

In deciding what sanctions to impose, the PCC must apply the principle of proportionality by weighing the interests of the public against those of the dentist.

Tip. This is where you need to put forward your mitigating circumstances so as to reduce the sanction imposed. Also you are allowed to suggest out what sanctions should be imposed and if you are able to give the PCC well thought-out sanctions bearing in mind the allegations, this could prevent erasure or suspension.  

Stage 1 – Case Assessment

When the GDC receives a complaint, it first considers if it is the correct body to deal with it. If so, it will obtain more information from the complainant to assess whether one of the ‘Standards for Dental Professionals’ may have been breached. It is important to note that the Case Assessors do not make any findings of fact.

You will be asked to provide:

1.       Evidence of your indemnity insurance cover;

2.       Details of your current employers/anyone you are contracted to provide services to;

3.       If the complaint is about dental treatment, the patient’s medical records.

Tip. At this stage do not provide any further information than the above. Whilst it will be tempting to explain what has happened, at this stage the GDC has not set out what the allegations are against you, so you do not know what you are responding to.  Any statement given could later be used against you.

Stage 2 – Case Examiner

If the Case Assessors consider a dentist’s fitness to practice may be impaired the case is referred to the Case Examiners; the case will be considered by one lay person and one professional. At this stage you will be sent details of the specific allegations against you and it is at this stage you will be asked to respond. The Case Examiners are not making findings of fact. Their role is to consider whether there is sufficient information to make a referral to the Practice Committee.

Tip 1. If the allegations are not clear, seek clarification. If evidence is referred to, ask for copies of that evidence.

Tip 2. Whilst the Case Examiners are not determining the case, if you can show there was no misconduct, we would recommend responding fully to the allegations and providing evidence to support your assertions. However, if you think there may be a case against you on the evidence received think very carefully before making any admissions at this early stage. It may well be worth seeing the extent of the case against you before admitting any wrong doing.

Stage 3 – Hearing

Should the case progress to a hearing then you will need to fully prepare for the same bearing in mind the test set out above. Consider:

·         What evidence do you need to rebut the allegations?

·         Are you able to show the misconduct is not serious?

·         What have you done to show your fitness is not impaired?

·         Will other dentists/patients provide statements as to your character?

·         What mitigating circumstances are there?

·         What sanctions should be imposed?

Tip. If you are not happy with the GDC’s decision you have the right to appeal to the High Court within 28 days. We set out the circumstances when you can appeal in Issue 2 of our dental bulletin.

If you need advice on a current Fitness to Practice investigation or appealing a decision of the GDC, please contact Laura Pearce on 0207 388 1658 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.">lpearce@jfhlaw.This email address is being protected from spambots. You need JavaScript enabled to view it. for advice.

©Laura Pearce, GDPUK Ltd 2017
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0
07
Feb
0
Posted by on in The Tooth Counsel

Our society has become more litigious over the years; patients are quick to complain to see if they can get a ‘quick buck’ and dentists fear such complaints being escalated to the GDC.

Litigation can be a costly game. For example, it has come to light that the legal costs for the recent 9 day fitness to practice hearing against D’Mello was an average of £10,437 per day. Given the allegations were undefended by Mr D’Mello, who chose not to attend the hearing, this has left many dentists questioning the use of their registration fees and asking why the costs were so high. [ see GDPUK news report].

If a dentist is faced with either a patient complaint or an investigation by the GDC, the traditional course of action has always been to approach their defence union; you pay subscriptions and therefore expect to be represented. However, is the defence union the best and only option to fund a case? What are the advantages/disadvantages with the various funding options?

When deciding whether or not to pursue or defend a claim, determining how you will fund the case will be one of the biggest factors to take into account. Knowing what options are available will make you better informed and can help you with this difficult decision. Here we consider those options and the pros and cons of each. 

Pay Privately. You may choose to pay privately for the legal costs. However, this is often the most expensive way to fund a claim, as it is likely you will be paying the solicitor on an hourly rate basis for all work done to prepare the case, unless you are able to negotiate a fixed fee agreement. The benefit of this is that you can pick an expert in the field and someone you can trust to do the best for your case. The old adage that you get what you pay for is particularly true here. The down side is that due to the very nature of litigation it can be hard to say from the outset the likely fees, as this can change depending on how the case progresses. A solicitor should however be able to give you a ball park figure and may agree to cap costs for you based on this or in respect of various stages to help you manage funds.

If the claim is in the civil courts, you may be able to recover some of your legal costs if you succeed. However, if you lose you could be liable for the other side’s legal costs. Unfortunately, in relation to fitness to practice hearings, you cannot recover your legal costs. Similarly, in the Employment Tribunal you can only recover costs in very limited circumstances and as such it is rare that costs are recovered.

‘No win, no fee’. These agreements are more normally found when one is pursuing a claim rather than defending it. The benefit to you is that there are no solicitor’s costs unless you win; this usually means a solicitor will be confident in the prospects of success of the claim, as otherwise they could do a considerable amount of work for no money. The down side is that as a result of you not paying up front, the solicitor will take a success fee from your compensation if you win.  Also check the terms of any agreement before signing, as there may be hidden costs if you lose or in other situations, which may mean you do have to pay some costs even if you do not recover any monies.

Legal Expenses Insurance Policy. Such policies are normally attached to other insurance policies such as employer’s liability or home contents insurance. The downside to legal expenses insurance is that you often have to meet certain criteria before funding is agreed. They also normally only apply once a dispute has arisen, and do not provide legal assistance to help you resolve a matter before getting to this stage.  The benefit is if funding is approved for your claim your legal costs and disbursements are covered, and often that of the other party’s should the case not succeed. There are different types of legal expenses insurance and it is often worth shopping around to find one that suits you; for example some will cover your legal costs no matter what and some will cover any compensation payable if you lose. Obviously such policies are likely to attract a higher premium. Remember, if you have legal expenses insurance, you have the freedom to choose your own solicitor and do not have to use the panel solicitors instructed by your insurance company.

Defence Union. If you are part of a defence union you will have access to a number of services including legal representation. However, the defence union are not obliged to follow your instructions, and can decide, due to commercial reasons, to settle a claim that you do not what to settle. This can leave you with a sense of injustice and frustration. Another consideration when choosing a defence union over standard indemnity insurance is that you will have no freedom of choice when it comes to choosing the solicitor or barrister that you want. Non-discretionary insurance policies are legally obliged to give freedom of choice in this regard.

After the Event Insurance. As the name suggests this is insurance you purchase after the dispute has arisen. It will normally cover your disbursements and the other side’s disbursements and legal costs should your claim fail. The policy therefore does not provide cover for your legal costs, which you will still need to fund. However, if your claim is in the civil costs and you succeed then you will recover some of your legal costs and disbursements from the losing party.

Do it yourself. There is always the option of representing yourself in proceedings. The benefit is you have complete control over your case and you do not have any legal costs. Beware; if the claim is in the civil courts and you lose you could have to pay the winning party’s legal costs. If you do represent yourself, remember to take a step back from the case; it is all too easy to get caught up in proving every wrong or to throw every allegation into the mix, which can often detract from the strengths in the case. You can consider instructing a solicitor to give you an initial advice so you know what direction to head in. You can also seek advice from a solicitor on an ad hoc basis to help you at various stages which can help keep the cost of litigation down.

How you fund a claim will depend on the type of claim being pursued. A solicitor has a duty to provide you with advice on your funding options, not just their fees, so you can ask them to explain the options available to you. Also make sure you understand any potential costs consequences of losing a claim, as you may want to seek insurance to cover such costs.

Laura Pearce, Senior Solicitor

©Laura Pearce, JFH Law, GDPUK Ltd 2017.
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22
Dec
0
Posted by on in The Tooth Counsel

At the start of 2017, we thought we would take a look back at one of the major events of the past year, and the dramatic effect it has had on both us and …the World.

When the team at the JFH Law’s offices were asked for their views on what this should be, everyone was in agreement that ‘Mug Gate’ was that very event.

‘Mug Gate?’ we hear you all asking, ‘how did I miss that?!’

Fear not; in this blog we will set out the issues surrounding the controversial ‘Mug Gate’ and how you can prevent it happening at your practice. 

It all began on 14th December 2016, when John Howey, Partner at JFH Law, announced he had broken a J mug washing up. ‘The handle just came off when I was washing out the inside’ he confirmed. At first we all laughed and there was some light hearted banter about Mr Howey not knowing his own strength; but things then took a turn for the worst.

Julia Furley, Partner at JFH Law, recalls:

At first it was all a bit of fun. We were laughing away, but then I looked around the room and noticed that everyone was drinking from a J mug. It became immediately clear to me that John couldn’t have broken a J mug. I therefore made the management decision to investigate further, attending the kitchen and conducting an audit of the firm’s J, F and H mugs.”

After Ms Furley had completed the stock-take it was discovered that all of the F mugs had mysteriously disappeared. It might be helpful at this point for the reader to note that we have a variety of mugs with the letters J, F and H on them. With the F mugs all gone, we no longer had our identity!

On 15th December 2016 Ms Furley vigorously interrogated all the staff as to their movements over the previous year and whether they had had any accidents involving an F Mug. Everyone denied having broken a mug. The plot thickened.

Anges Biel, paralegal, was tasked with making enquires with the cleaner, after completing her investigations she confirmed ‘the cleaner is denying any breakages but I have my doubts. I found out his name is Franz Ferdinand’. We were certainly suspicious. Could it be that Mr Ferdinand supplementing his own collection of mugs with our Fs?  

Whilst we now have the expense of re-stocking our kitchen with F mugs, we are also left wondering; what if M&S no longer stock lettered mugs?

Everyone at the office has been left unsettled by these unfolding events. Jigna Verakia, solicitor, provide us with this quote:

I just don’t know why someone would want to take all of our F mugs. We are a close team but I am now left suspicious of those around me. I have my own mug and I now take this home to protect it. I just don’t know what I would do if anything happened to it.

The mystery continues here at JFH Law but what lessons can your dental practice learn from Mug Gate?

Laura Pearce, employment solicitor at JFH Law, advises:

The morale of this story is; don’t trust your staff. Theft is theft is theft. Make sure all surgery property is under lock and key and only the managers can access it. Have a signing in and out form for each time staff members want to use a mug or a pen. Search bags as staff are leaving and undertake random stripe searches. If you find that anyone has taken anything, shout very loudly ‘you’re fired’ and escort them off the premises.

We also spoke to Duncan Roberts, criminal solicitor, to get his take on the situation:

Don’t bother phoning the police; deal with it yourself. An eye for an eye, a tooth for a tooth has always been my motto.

If you need any advice about marching staff of your premises or medieval punishments, please do not hesitate to contact us for assistance. And if anyone sees any of our F mugs, please let us know immediately; there will be a reward for anyone who helps in their safe return.

How to deal with gross misconduct

On a more serious note, dealing with gross misconduct can be difficult; when you work in a small practice, if a member of staff has taken something that does not belong to them, trust can break down and emotions may run high.

Before you jump the gun and start firing staff, take a step back and follow this simple 3 step process to help you avoid landing in hot water.

Step 1 – Investigate

Call the employee into a meeting and question them about the incident. This should be informal and a meeting to gather information not make allegations. You do not need to write to the employee beforehand inviting them to the meeting. They do not have any right to a representative at the investigatory meeting.

After the meeting, consider whether you need to suspend the employee. This should be a last resort and not an automatic response to allegations of misconduct.

If someone else reported the incident, obtain a statement from them too. Is there any other evidence you can obtain to help you make a decision?

At the end of this process gather together the information you have and decide whether there is sufficient evidence to take the matter via a formal route.

It is at this point you can weigh up the seriousness of the allegation and decide whether an informal chat with the employee would be enough to rectify the behaviour. Some companies take a hard line and consider any theft amounts to gross misconduct, whilst others may view the theft of a pen as less serious and give a simple ‘slap on the wrist’ warning not to do it again. Remember whatever line you take make sure you treat all employees the same.

Step 2 – Disciplinary Meeting

If you consider the allegation is serious enough to take formal action, write to the employee and invite them to a disciplinary meeting. The letter needs to clearly set out the allegations and state that if found prove it could result in summary dismissal. At this meeting, the employee is entitled to be represented by either a trade union representation or work colleague, and you should remind them of this in the letter. Finally, make sure all evidence you have obtained is sent to the employee so they can comment on it.

You should give the employee time to prepare for the disciplinary meeting; how much time you give will depend on how much information there is. 

At the meeting put the allegations to the employee and give them a chance to respond.

We would recommend adjourning the hearing to make your decision. If you do this and carry out any further investigations, you will need to re-convene the hearing and give the employee a chance to comment on any new information that comes to light.

Write to the employee with the outcome. Set out in detail why you have come to your decision. If you do dismiss the employee, offer the right of appeal.

Step 3 – Appeal

If the employee appeals the decision, you should invite them to an appeal meeting. This should be heard by someone different to the disciplinary hearing and more senior if possible.

Again the employee is entitled to be accompanied at this meeting.

Hold the meeting and let the employee put forward their grounds of appeal. Following the meeting, write to the employee with the final outcome.

The above three step process is based on the ACAS code of practice, which you should always look to follow. You should also consider what your own policies say and try to follow them where possible.

If you need advice or assistance on dealing with a disciplinary procedure, please contract Laura Pearce on 0207 388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it.

©Laura Pearce, GDPUK Ltd 2017
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