In Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010], a doctor was summarily dismissed following a disciplinary proceedings. He successfully argued that his dismissal was wrongful (in breach of contract procedures. How much would should he get?
The Trust argued that any damages for breach of contract should be limited to his 3 month notice period. Dr Edwards argued that the breaches by the Trust affected his professional status, causing career long losses of some £4m.
The Court of Appeal agreed that if the substantive claim succeeded, loss of earnings could cover the period in which Dr Edwards would have remained employed had the contractual disciplinary procedure been observed. Dr Edwards can now claim that his career long losses would be £4m. As a fall back argument, the Trust may argue that he would still have been dismissed even had their procedures been adhered to. This decision is controversial though because it could give employees a way around the statutory cap of some £65,300 in unfair dismissal claims and the one year qualifying period. The Trust is seeking leave to appeal to the Supreme Court. Lesson for employers; make disciplinary procedures non-contractual, & follow procedures if at all possible (Source: ELA, barrister Daniel Barnett.)
James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*www.reculversolicitors.co.uk
Regulated by the Solicitors Regulation Authority: Firm 405070 Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only
Sunday, May 30, 2010
Monday, May 24, 2010
In the Name of Equality
The Equality Bill has been approved by the House of Commons and will come into force in October 2010, with some provisions being delayed till 2011. Some of the main points to be aware of are:
What is covered?
- The Equality Act consolidates and extends discrimination law to cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief.
- The Act also covers in many but not all instances, marriage and civil partnerships.
- These will all be ‘Protected Characteristics’.
Disability:
- ‘Disability related' discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
- Employers wont be able to ask job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is intrinsic to the work concerned).
- Employers will still be entitled to screen applicants about health after making a job offer.
Discrimination by Association:
- The ban on discrimination by association (for example a parent of a disabled child) will be extended to all protected characteristics. This will now cover spouses, partners, parents and carers who look after a disabled person or older relative from discrimination. They will be protected by virtue of their very close link to that person.
Discrimination based on Perception:
- Employees wrongly thought to have a protected characteristic (for example, an employee thought to be gay but who isn’t) will be able to claim for sex discrimination.
Combined Characteristics:
- From April 2011 a claim can cover combined characteristics (for example a woman who is discriminated against both for being a woman and being gay)
Recommendations:
- Tribunals will be able to make recommendations when unlawful discrimination is proved.
- This could include re-training staff, publishing its selection criteria used for staff transfer or promotion, setting up a review panel to deal with equal opportunities, harassment and grievances.
- Failure to comply could be damaging to the employer's reputation and be used in evidence against the employer in future discrimination claims.
Under Represented Groups:
- Employers can choose someone for a job from an under-represented group when they have the choice between two or more candidates who are ‘as qualified' as each other.
- However Employers must not have a policy of doing that in every case.
- Many employers will not wish to take the risk of trying to apply this in practice.
Talking about Pay:
- Employees will be free to discuss pay, and whether there is a connection between pay and having (or not having) a particular protected characteristic
- This will cover seeking or giving information with current and former colleagues.
Action taken against them for being involved in such a pay discussion will be unlawful victimisation. So secrecy clauses against talking about pay will be out.
- Employers with 250 employees or more will be encouraged, on a voluntary basis, to publish their pay statistics to demonstrate how they are tackling the gender pay gap.
- This may become compulsory in 2013.
- Public bodies with 150 or more employees may have to publish their gender pay gap from April 2011.
Public Sector Equality Duty:
-From April 2011 there will be a new single public sector equality duty.
-Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services.
James Carmody is an employment solicitor specialising in UK employment law based in Clerkenwell, Central London EC1.
What is covered?
- The Equality Act consolidates and extends discrimination law to cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief.
- The Act also covers in many but not all instances, marriage and civil partnerships.
- These will all be ‘Protected Characteristics’.
Disability:
- ‘Disability related' discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
- Employers wont be able to ask job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is intrinsic to the work concerned).
- Employers will still be entitled to screen applicants about health after making a job offer.
Discrimination by Association:
- The ban on discrimination by association (for example a parent of a disabled child) will be extended to all protected characteristics. This will now cover spouses, partners, parents and carers who look after a disabled person or older relative from discrimination. They will be protected by virtue of their very close link to that person.
Discrimination based on Perception:
- Employees wrongly thought to have a protected characteristic (for example, an employee thought to be gay but who isn’t) will be able to claim for sex discrimination.
Combined Characteristics:
- From April 2011 a claim can cover combined characteristics (for example a woman who is discriminated against both for being a woman and being gay)
Recommendations:
- Tribunals will be able to make recommendations when unlawful discrimination is proved.
- This could include re-training staff, publishing its selection criteria used for staff transfer or promotion, setting up a review panel to deal with equal opportunities, harassment and grievances.
- Failure to comply could be damaging to the employer's reputation and be used in evidence against the employer in future discrimination claims.
Under Represented Groups:
- Employers can choose someone for a job from an under-represented group when they have the choice between two or more candidates who are ‘as qualified' as each other.
- However Employers must not have a policy of doing that in every case.
- Many employers will not wish to take the risk of trying to apply this in practice.
Talking about Pay:
- Employees will be free to discuss pay, and whether there is a connection between pay and having (or not having) a particular protected characteristic
- This will cover seeking or giving information with current and former colleagues.
Action taken against them for being involved in such a pay discussion will be unlawful victimisation. So secrecy clauses against talking about pay will be out.
- Employers with 250 employees or more will be encouraged, on a voluntary basis, to publish their pay statistics to demonstrate how they are tackling the gender pay gap.
- This may become compulsory in 2013.
- Public bodies with 150 or more employees may have to publish their gender pay gap from April 2011.
Public Sector Equality Duty:
-From April 2011 there will be a new single public sector equality duty.
-Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services.
James Carmody is an employment solicitor specialising in UK employment law based in Clerkenwell, Central London EC1.
Investigating a Disciplinary when the police are involved
If you believe that your employee may be guilty of a serious theft or crime at work, you may also want to report the matter to the police. Should you then wait until the police finish their investigation or even their prosecution? That could take months. On the other hand, if you proceed with your disciplinary process before the police investigation concludes, will that prejudice a criminal prosecution? This is the dilemma that employers often face in this kind of situation.
In Secretary of State for Justice v Mansfield, the employee was under a police investigation in relation to allegations of planting drugs. His employer brought a disciplinary investigation on the same issues, but postponed it during the police investigation. Mr Mansfield claimed unfair dismissal, saying that the delay in the disciplinary investigation was unreasonable. The Employee Appeal Tribunal however disagreed. In an unfair dismissal case, where an employee faces disciplinary proceedings at the same time being investigated by the police, the EAT took the view that the employer has a wide discretion as to whether to continue or postpone the disciplinary hearing.
Postponing the disciplinary investigation in this kind of situation is all very well, but you won’t want to suspend an employee on full pay for weeks or months whilst the police investigation proceeds at a leisurely pace. There is no easy answer in this kind of situation. Whilst you will of course want to liaise carefully with the police first, you may not be able to afford to delay the disciplinary process, or risk more criminality in the meantime.
James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk
Regulated by the Solicitors Regulation Authority: Firm 405070 Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only
In Secretary of State for Justice v Mansfield, the employee was under a police investigation in relation to allegations of planting drugs. His employer brought a disciplinary investigation on the same issues, but postponed it during the police investigation. Mr Mansfield claimed unfair dismissal, saying that the delay in the disciplinary investigation was unreasonable. The Employee Appeal Tribunal however disagreed. In an unfair dismissal case, where an employee faces disciplinary proceedings at the same time being investigated by the police, the EAT took the view that the employer has a wide discretion as to whether to continue or postpone the disciplinary hearing.
Postponing the disciplinary investigation in this kind of situation is all very well, but you won’t want to suspend an employee on full pay for weeks or months whilst the police investigation proceeds at a leisurely pace. There is no easy answer in this kind of situation. Whilst you will of course want to liaise carefully with the police first, you may not be able to afford to delay the disciplinary process, or risk more criminality in the meantime.
James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk
Regulated by the Solicitors Regulation Authority: Firm 405070 Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only
How much disciplinary investigation is necessary?
When considering whether to dismissal for misconduct, a question that often comes up is how much investigation should the employer carry out first? It’s commonly known that under the ‘Burchell’ test:
- the employer must establish that he believed the employee was guilty of misconduct;
-the employer must have had reasonable grounds for that belief;
-the employer must have carried out as much investigation into the matter as was reasonable in all the circumstances.
In the recent Court of Appeal case of Salford NHS Trust v Roldan, Ms Roldan was a staff nurse, when a colleague complained that she had ill-treated a colleague, discarding cleaning wipes on a patients face and slapping his hand. She was suspended, and informed that serious complaints had been made. In the investigation the colleague was interviewed, as was Ms Roldan and her supervisor. The complainant’s recollection was precise and consistent, but Ms Roldan’s recollection was inconsistent and vague. Ms Roldan was dismissed following a disciplinary hearing, who then appealed saying amongst other things that the wipes had gone in the patients face by accident, but that the patient had assaulted her.
The appeal took the form of a re-hearing with all the witnesses giving evidence again. The appeal was rejected. The consequences for the appellant were very significant; not only did she lose her job, but in addition she lost her work permit and the right to remain in the United Kingdom, as well as being the subject of a criminal investigation by the police for which she was prosecuted but acquitted.
One of the grounds of appeal was whether the investigation was adequate. On the facts, the Court of Appeal considered that further investigation should have been carried out:
· The more serious the consequences of dismissal for the employee, the more careful an investigation is required. In this case, a more careful investigation was needed because the consequence of dismissal was that Ms Roldan could be deported; ‘This is particularly so given that here was a woman who had given service to the employers over 4 years, apparently without complaint, and there was a real risk that her career would be blighted by this dismissal. It would certainly lead to her deportation and destroy her opportunity for building a career in this country’. More could have been done to check the allegations made.
- An employer faced with a conflict of evidence between two witnesses is not obliged to believe one employee and to disbelieve the other. If it is unable to resolve the conflict, it is perfectly proper to give the alleged wrongdoer the benefit of the doubt.
At first reading, the Trust’s investigation and complete re-hearing at appeal seemed quite thorough. However employers would be wise to consider the full consequences of a disciplinary dismissal, and investigate as exhaustively as possible if deportation, prosecution or being placed on a barred list might follow.
James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk
Regulated by the Solicitors Regulation Authority: Firm 405070 Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only
£147,000 for Age Discrimination
NHS manager Linda Sturdy has won £147,000 for age discrimination, including £29,500 for injury to feelings, and £5,000 for aggravated damages as well as loss of earnings.
Linda Sturdy had been 56 when she was passed over for a job running breast screening services, and the Tribunal found this was due to her approaching retirement age. A 43 year-old got the job instead. Her manager had said he did not realise how old she was when she said she would be retiring in 2010.
One would normally imagine that in a case like this, an award for injury to feelings would be at the lower end of the scale. However according to reports, she was threatened with the sack if she did not take a more junior position, and was then dismissed. The Tribunal Judge commented that managers had been 'malicious and insulting' in accusing her of not making her claims of age discrimination in good faith and had failed to carry out an unbiased investigation into her claims which was 'high-handed, insulting and oppressive'.
In other words, the Trust appear to have made things much worse by how they dealt with the complaint. The award for injury to feelings is still extremely high, and is unlikely to set be replicated in many Tribunals. The aggravated damages of £5,000 was for the high-handed, insulting and malicious way the Trust handled her grievances. The award for loss of earnings was probably on the high side due to the difficulty Ms Sturdy would have securing alternative suitable alternative employment before retiring. The lesson here is to always handle grievances in a dispassionate and objective manner, even if you think they have no foundation. When in a hole, stop digging!
Source: Emplaw. BBC. Daily Mail
James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk
Regulated by the Solicitors Regulation Authority: Firm 405070 Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only
Linda Sturdy had been 56 when she was passed over for a job running breast screening services, and the Tribunal found this was due to her approaching retirement age. A 43 year-old got the job instead. Her manager had said he did not realise how old she was when she said she would be retiring in 2010.
One would normally imagine that in a case like this, an award for injury to feelings would be at the lower end of the scale. However according to reports, she was threatened with the sack if she did not take a more junior position, and was then dismissed. The Tribunal Judge commented that managers had been 'malicious and insulting' in accusing her of not making her claims of age discrimination in good faith and had failed to carry out an unbiased investigation into her claims which was 'high-handed, insulting and oppressive'.
In other words, the Trust appear to have made things much worse by how they dealt with the complaint. The award for injury to feelings is still extremely high, and is unlikely to set be replicated in many Tribunals. The aggravated damages of £5,000 was for the high-handed, insulting and malicious way the Trust handled her grievances. The award for loss of earnings was probably on the high side due to the difficulty Ms Sturdy would have securing alternative suitable alternative employment before retiring. The lesson here is to always handle grievances in a dispassionate and objective manner, even if you think they have no foundation. When in a hole, stop digging!
Source: Emplaw. BBC. Daily Mail
James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk
Regulated by the Solicitors Regulation Authority: Firm 405070 Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only
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