Medico-legal - Employment dilemmas

Medico-legal adviser Dr Bryony Hooper answers your queries.

Q: Religious issues
Can a practice secretary refuse to be involved in the logging and sending of referrals of patients for termination of pregnancy on grounds of conscientious objection?

It is possible that the secretary can refuse to be involved in this line of work, if it would be contrary to her strongly held religious beliefs.

First of all, she would need to raise the issue with the practice and request not to do this type of work. The practice would then have to consider what could be done to cover the work by other means - for example, by swapping duties around between the support staff, or by GPs making the referrals directly online.

Assuming that this work is a very small part of her role, a practice would have to look at making these adjustments, as failing to do so could potentially be discriminatory under the Employment Equality (Religion or Belief) Regulations 2003.

The issue would be whether a refusal to change the role would be proportionate and objectively justifiable. It is likely that small changes would have to be made.

Although a claim under these regulations is a more likely legal challenge, there could also be a Human Rights Act issue if the right to freedom of conscience and religion was claimed.

Q: Maternity
Can a full-time nurse who is on maternity leave elect to return to work as a part-time nurse? And if she returns as a part-time nurse can she decide in a few years that she wants to revert to full-time employment?

A full-time nurse can apply to her employer for flexible working to be considered. This right belongs to any employee who is a parent and cares for a child aged 16 or under.

The purpose of applying for the change in hours is to care for the child. The law also gives the right to others who have responsibility for children, such as guardians and foster parents.

The nurse has to write to her employer, including details of her desired work pattern, the proposed start date and how any effects on the practice could be dealt with. The employer should then follow a procedure with meetings to discuss the request and if the change can be made.

If the change is made, it is a permanent change to the contract of employment, unless the employee and employer agree specifically that it is temporary or for a limited period of time.

If the change is permanent, the nurse can ask to be considered for full-time employment in the future (she would need to wait a year before making another request), but there is no guarantee that her employer will agree to it, as it would depend on the needs of the organisation at that point in the future.

  • Dr Hooper is a medico-legal adviser at the Medical Protection Society (MPS).
  • Croner provides business advice to members of the MPS who have joined the GP Practice package. Croner is the UK's leading provider of information, advice and support in the areas of employ-ment and health and safety

Learning points

1. Consider adjusting a member of staff's role if they conscientiously object to one of their duties.

2. An employee could claim a right to freedom of conscience and religion under the Human Rights Act if the employer refuses to reasonably adjust the role.

3. Any employee who is a parent and cares for a child who is under the age of 16 has the right to apply for flexible working hours.

4. If a change to working hours is made, it is a permanent change to the contract of employment, unless the employee and employer agree specifically that it is temporary or for a limited period of time.

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