The Legal Pitfalls of Recruitment in Dentistry

It’s no secret that the recruitment and retention of good staff members within dentistry is one of the main problems facing practice owners. There is very little training provided at dental school or within the profession on how to recruit effectively. That being the case, Sarah Buxton of Buxton Coates Solicitors Ltd has produced the following article to try and guide practice owners and managers in respect of recruitment.

When someone leaves, or you are growing a practice, it is a good idea to reassess your business and decide what you actually need. So, for example, if you have always engaged a self-employed hygienist and they leave, you should assess whether it may be better to employ a hygienist going forward.

Not many practice owners are aware that a claim can be made to the Employment Tribunal before an employee even commences employment because of how the recruitment process is conducted.  This is usually when discrimination cases are made. It’s important to note that the amount of compensation that can be awarded in those situations is unlimited, so eye-watering amounts of money can be paid out. We advise all practice owners to check if they have Legal Expenses Insurance in place. Legal Expenses Insurance is an insurance product whereby if you receive a claim in the Employment Tribunal, your legal fees, out of court settlement, and any Judgment awarded would be covered by the insurance product.

There are some interesting case studies showing where people have been tripped up during the recruitment process. One notable case is where an individual was providing a CV in two formats. One of them was using an Anglicised name and the other was using an Asian name. He was sending the same CV to various employers, and nine times out of 10, the one with the Anglicised name would be given the opportunity of an interview. This meant he was able to go to the tribunal and say “Look, the CVs are exactly the same. The only reason I wasn’t given an opportunity of an interview is because of my name and therefore the inference is because of my race”, and he would be awarded compensation for race discrimination.

So, it’s really important that practices do have recruitment policies in place and, although practices are desperate to recruit at the moment, we’ve still got to follow those policies and procedures to make sure that practices can try and prevent these types of discrimination cases.

Knowing how to interview people is a skill in itself. If you’re trained in the recruitment process, then you know how to ask the right questions to make sure that you get the ideal team member. You also know there are certain questions that you shouldn’t ask with respect to their health or other personal issues, and so on. But, ultimately, those who are well trained in recruitment and have experience in it will make good notes. You should keep them on file because, if somebody then goes and makes a claim against you for discrimination, perhaps because they believe they didn’t get the job because of their race, age, disability or so on, with any luck you will have some notes that set out why they didn’t get the job. Hopefully, those notes will then show they were unsuccessful because of skill, or attitude, or something along those lines.

We also advise you to keep those notes on file - your GDPR policy will set out how long you can keep them because if you don’t recruit that person you will only be able to hold them for a certain period. But my advice would be to keep them for at least three months because that’s the time limitation in which somebody has to make a claim in the employment tribunal.

At the moment, the court system is blocked up so potential employers don’t always realise they’ve got a claim against them within that three-month period. So, right now I’m suggesting to people to keep their notes a little bit longer, maybe six to 12 months. This also means, if another position arises, you might be able to revisit them and if a person narrowly missed getting the job but they were actually quite good, if your GDPR policy allows, you could go back to them. So, there are several advantages to keeping your interview notes.

If you are the interviewee, concentrate on what you are doing. The last thing you want to be thinking about is making notes, so it’s really good to have somebody independent there making those notes. I often say, as well, that it doesn’t necessarily have to be somebody within the team. It could be nice to get somebody external to come in with you and give you a different view of that individual. I appreciate that, as a small team, quite often it’s difficult for two people to be out of surgery to interview for an hour, however, you could look elsewhere. Consider getting a colleague from elsewhere to come and help and assist you with that.

It is also important that you don’t recruit the wrong person just to fill a gap. Having the wrong person with either the wrong attitude or skill can end up being more costly and stressful in the long run.  

Sarah Buxton is a Director and Employment & HR Solicitor of Buxton Coates Solicitors Limited. Buxton Coates Solicitors acts for Practice Owners, Managers and Associates in all aspects of buying, selling, and running a dental practice. For further information, please call 0330 088 2275.