Taking care with the law

Posted on January 8th, by geoff in Caring Times head, CT Extra. No Comments

Questions answered by MIKE CARROLL, employment law consultant at Collinson Grant


Q: Staff at the home I manage became concerned that a new colleague seemed to be having difficulty reading the labels on pharmaceutical packaging while in charge of the drugs round. I arranged an appointment with an optician and was shocked to be told that the nurse was legally blind. She had not declared this in her job application and we did not notice the disability at interview. What should or can I do?

A: The Equality Act 2010 requires employers to make reasonable adjustments for employees with disabilities. As a first step, it will be important to consider whether the employee’s job can be reasonably adjusted so as to allow her to continue. If the medication round is an unavoidable part of her duties as a nurse and her eyesight is so poor that she cannot carry it out, you may have to contemplate dismissal. However, before taking that step, you should also consider whether there are vacancies for other jobs where the disability might be accommodated more successfully.


Q: I am an area manager in charge of a number of homes. A case has been referred to me in which a carer took a boiled potato from the plate of a resident and ate it. The home manager decided that this was theft, suspended the carer and seems to think that she should be dismissed. The carer has admitted taking and eating the potato but it is not clear whether this happened before or after the food had been given to the patient, or whether the patient received the correct portion. What is the best course of action?

A: As a first step, you should investigate when the potato was taken and whether the resident received the appropriate portion size. Given the actions of the home manager in suspending the carer, this should be done by another manager within the organisation. When this investigation is complete, you can decide what, if any, sanction is appropriate. Although theft of any kind is gross misconduct, if the carer’s action in eating the potato did not have any detrimental effect on the resident’s nutrition, dismissal may not be ‘within the band of reasonable responses’, as the law puts it. Common sense is the best guide when handling situations such as this.


Q: My company has just taken over a chain of care homes and we are concerned that sickness absence has not been managed properly by the previous owners. Employees go off sick for short periods at difficult times, such as weekends and bank holidays, throwing the rosters into chaos. This means that homes are obliged to call in agency nurses at short notice, leading to considerable additional costs. How can we solve this problem while maintaining good relations with our staff?

A: The starting point should be to look at how managers deal with staff attendance. If it is not already in use, I would recommend adopting the ‘Bradford Factor’ to measure absenteeism. This is an objective scoring system which indicates the degree of disruption caused by a staff member’s absences. Repeated, short and therefore more disruptive absences are given a greater score than isolated, longer absences. Using a simple piece of software, managers can easily keep an up-to-date record. A back-to-work interview should be held after every absence and, where appropriate, the employee’s Bradford Factor score should be discussed and compared with the benchmark. I have known cases in which the application of the Bradford Factor has reduced staff absence by more than 10 per cent.


Q: A care assistant at the home I manage became angry when an elderly resident addressed him, using a racial epithet. He shouted at the resident and she began to cry. The resident’s care notes clearly document that she had a tendency to be racially abusive towards carers because of her lack of mental capacity. I am afraid that if we dismiss the carer, he will take the case to a tribunal, perhaps also arguing that the company has failed in its duty to provide him with a safe working environment by not protecting him from racial abuse. What should I do? A:

I would advise that dismissal would be appropriate, subject to a reasonable investigation. The fact that the resident’s tendency to utter racial abuse is recorded in the care notes means that, however offensive he found it and even if he had not encountered this resident before, the carer must deal with this as part of his job. By reacting, he breached professional standards. This case shows that clear and timely documentation of care plans and training programmes is of vital importance in managing employees.

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