Legal implications of failing to train your staff

A recent survey by the Royal College of Nursing found that a third of nurses, failing to receive necessary training and development from the NHS, are using their own time and money to undertake mandatory training needed to do their job properly.

The report goes on to suggest that such post-registration training included areas such as health and safety procedures, child protection and basic life support.

The impact of this lack of training on the standard of care provided for patients is particularly worrying at the moment, given current indications that government spending in the public sector will be cut dramatically over the next few years. As many HR professionals will be acutely aware, training has often been the first area to be cut, but training in other sectors will rarely come down to a matter of life and death, as is the case within the NHS.

An NHS trust is usually vicariously liable for the actions of its staff, if undertaken as part of their duties. This could include negligent acts that result in injury to others.

The injured party may seek to prove that if the nurse had received the correct training (which that nurse was both entitled to and expected to undertake), then on the balance of probabilities, the negligent act would not have occurred. The level and standard of the training in question would be judged on the basis of that nurse’s experience, qualifications and duties.

The failure to provide that training could be fatal to the defence of such a legal action, and the trust might be found liable. The trust therefore has a duty to provide staff suitably trained to undertake their duties – not an unreasonable request.

If the trust were to argue that training was available but the member of staff simply failed to avail themselves of it, that is not a credible defence – the employer would still be liable for the actions of its staff. Nevertheless, the trust might take disciplinary action against the member of staff, as might that individual’s professional body. The latter might investigate the nurse’s fitness to practice, or possible misconduct, due to the failure to receive the correct training.

If the nurse was self-employed, they could be found personally liable and reliant upon their professional indemnity policy to pay any damages and associated legal costs.

So what does this mean for employers in other sectors where training has taken a backseat in the wake of the recession? Interestingly, hot on the heels of the publication of the survey from the Royal College of Nursing came the introduction of new legislation providing employees with a statutory right to request time off from work to undertake external training.

The new regulations, initially covering only organisations with more than 250 employees, afford employees the right to make a request in relation to study or training, and allow an employee to seek funding from their employer for a particular course. The course can even be undertaken outside of normal working hours, and the legislation allows employees to seek funding from their employer for materials such as text books. But the employee is required to demonstrate to their employer that the purpose of the training is to improve the employee’s effectiveness within the employer’s business or the performance of the business itself.

An employer will be obliged to consider such requests seriously and will need to have a good business reason for turning down such a request. Failure to take requests seriously could lead to the employer facing costly and time-consuming employment tribunal claims whereby successful claimants could recover up to eight weeks’ pay.

Employers may find the recently introduced legislation becomes a new breeding ground for employee grievances, which will only serve to add to the administrative burden upon employers at a time when they are still struggling to overcome the recession. Whether a potential new government may yet add further to this increasing ream of employment-related red tape is yet to be seen, but what is abundantly clear is that employers can waste no time in ignoring any requests for training that come their way.

Jane Hobson, partner, employment team, and Simon Charlton, associate, healthcare team, Weightmans

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