disciplinary hearings and hospital trusts

Along comes another case to add to the long list of claims against hospital trusts concerning alleged flaws in the disciplinary process. Trusts have very detailed contractual disciplinary procedures, complicated by reviews and the introduction of new and often overlapping procedures consequent to Directions issued by the Secretary of State which have led to a plethora of claims of failure to comply with contractual terms, express or implied. These cases have often assisted more generally in the clarification of tricky legal questions (such as the right to legal representation at disciplinary hearings under human rights legislation).
In Lim v Royal Wolverhampton Hospitals NHS Trust the High Court was asked to consider whether Mr Lim (a consultant anaesthetist) should be granted an injunction preventing a capability hearing from proceeding until an assessment panel of the National Clinical Assessment Service (NCAS) had made a determination as to his performance. The court was asked to determine two questions:
1. Whether the Trust was in breach of contract by failing to comply with its own procedures by failing to refer the issues (relating to bullying and inappropriate behaviour) to the NCAS
2. Whether, by seeking to revive allegations of misconduct some three years earlier, the Trust failed to comply with the terms of its own disciplinary procedure that it should act fairly and speedily.

Comparisons with the treatment of others rarely assist in disciplinary matters

It is very common when receiving instructions in connection with unfair dismissal claims for the complainant to compare they way they have been treated with the treatment of other employees, e.g. “it’s not fair because he did far worse than me and only got a written warning”. In nearly all such cases the treatment of others is irrelevant when determining whether or not the individual was treated fairly or unfairly, particularly in terms of sanctions imposed. Although employees can often see their actions as directly comparable with others it is rare for there to circumstances in which a direct and equal comparison can be made.

A good example is the recent decision of the Employment Appeal Tribunal in MBNA Limited -v- Jones. Mr Jones was a collections officer with MBNA Bank in Chester. In November 2013 the bank celebrated its 20th birthday with an event at Chester Racecourse. Staff were told that it was a work event and normal standards of conduct would apply, with any misbehaviour being dealt with in accordance its procedures and guidelines. Although the event started at 7.00 p.m. Mr Jones had started drinking at about 5.00 p.m. He was in company with another employee, Mr Battersby. Early on in the evening there was an incident which involved Mr Battersby kneeing Mr Jones in the back of his leg and Mr Jones licking Mr Battersby’s face. Staff who were present did not regard it as more than fun or banter. Later in the evening Mr Jones had his arms around Mr Battersby’s sister. Mr Battersby again kneed him in the leg and, in turn, Mr Jones punched Mr Battersby in the face.

After Mr Jones left the event he went with others to a club. Mr Battersby waited outside the club and sent Mr Jones seven texts which included a repeated threat to “rip your f*cking head off”. As it happened there were no further incidents that night and Mr Jones did not read the texts until the following morning.

MBNA conducted a disciplinary investigation and brought charges against both employees. It was concluded following a disciplinary hearing that Mr Jones had initiated the altercations by licking Mr Battersby’s face and his claim of self-defence was rejected. It was also noted that the incidents took place at a MBNA branded event, thereby impacting on the reputation of MBNA. He was summarily dismissed for gross misconduct.

In the case of Mr Battersby, he was found to have sent texts which were “of an extremely violent nature and were wholly inappropriate”. However they were considered as a response to Mr Jones hitting him and he was issued with a final written warning.

An appeal against dismissal by Mr Jones was unsuccessful.

At the Employment Tribunal it was argued on behalf of Mr Jones that there was inadequate investigation, insufficient weight was attached to provocation and there was inconsistency between the dismissal of Mr Jones and the warning issued to Mr Battersby. On behalf of MBNA it was contended that it was impermissible to find that Mr Jones was unfairly dismissed because of the way that Mr Battersby had been treated.

suspension of employees during disciplinary proceedings and referrals to the police

The case of Crawford and Another v Suffolk Mental Health Partnership NHS Trust, recently considered by the Court of Appeal, appears on its face to be concerned with relatively straightforward issues resulting from dismissals for gross misconduct following alleged mishandling of patients, particularly the deployment of a “safe handling technique” which had caused open skin tears as well as the forcible administration of medicine. The employees concerned were suspended and the police were informed about potential criminal offences. The process took its course and this resulted in a delay of six months between suspension and dismissal.

At the resulting employment tribunal it was accepted that the genuine reason for dismissal was misconduct and the question was whether dismissal was reasonable measuring the actions of this employer against the yardstick of a reasonable employer. There were factual errors so that some of the conclusions reached in the disciplinary process could not be sustained and this was accepted by the Trust. There were also procedural defects. Findings of unfair dismissal followed. The Trust appealed successfully and on further appeal to the Court of Appeal the findings of unfair dismissal were restored and the cases were remitted to a further tribunal to determine whether or not, had the employer followed a fair procedure, the employees might have been fairly dismissed and, if so, whether their compensation should be reduced (commonly referred to as the Polkey argument, after a case of that name).

So far, so unremarkable. However, Lord Justice Elias was clearly concerned about the delay between suspension and dismissal. It was pointed out to him that a delay of this length is not that unusual in practice but he was concerned that “six months’ suspension puts considerable pressure on staff” and that “it is difficult to see why the investigation of a single incident of this nature should have taken so long”.

An employee’s right to privacy – are your emails protected?

One of the most common issues encountered by employers today is whether emails sent by employees are able to be used in disciplinary proceedings against them.  Are they the private property of the employee or can an employer use them as evidence if they have an effect on their employees/the workplace?

In the case of Garamukanwa v Solent NHS Trust, an employer was recently held not to have breached an employee’s right to a private and family life (Article 8 of the European Convention on Human Rights) when they reviewed private information that belonged to the employee on the basis that the information related to work and therefore had a potential impact on the employer.

The Claimant (Mr Garamukanwa) worked as a Clinical Manager for the Respondent (Solent NHS Trust), and had formed a personal relationship with a fellow colleague, Ms Maclean.

Following the breakdown of this relationship, the Claimant then believed that Ms Maclean had started a relationship with another colleague, Ms Smith. Ms Maclean and Ms Smith subsequently received an email from the Claimant in which he advised them that unless they told their manager about their relationship, he would do it himself.

Prior to this an anonymous letter had in fact already been sent to the aforementioned manager (Mr Brown), accusing Ms Maclean and Ms Smith of ‘inappropriate sexual behaviour’ in the workplace.  Mr Brown subsequently raised these concerns with Ms Maclean and Ms Smith, who denied both having a relationship and inappropriate sexual behaviour.  Ms Maclean later advised Mr Brown about the email that herself and Ms Smith had previously received from the Claimant and stated that she felt threatened as a result of this.

Mr Brown therefore informally raised these concerns with the Claimant, who apologised for sending the email but denied being the person who had sent the letter to him.  Ms Maclean and Ms Smith were then the subject of a vendetta which consisted of the sending of malicious emails and photos to management and other members of staff, from various anonymous email addresses.  In addition a fake Facebook profile was set up and around 150 of the Respondent’s employees were added to it.  It later became clear that whoever was responsible for the vendetta was following Ms Maclean and Ms Smith, and Ms Maclean believed that the Claimant was in fact stalking her. 

More issues concerning employee rights and social media

As we all know social media is an increasingly pervasive aspect of many of our daily lives. As I have previously reported the interaction between the publication of information by individuals on their personal social media platforms and rights at work can create significant problems.

This issue returned for judicial scrutiny once again this month in the Employment Appeal Tribunal decision in the case of British Waterways Board v Smith.

Mr Smith commenced employment with British Waterways Board, trading as Scottish Canals, as a manual worker in April 2005. Staff worked a seven day rota with standby for seven days one week in each five. Mr Smith was one of a team of eight, described by the Employment Tribunal as “not a happy team”. In 2012 and 2013 Mr Smith raised a number of grievances covering health and safety issues and an allegation of bullying and harassment by certain managers and supervisors. After investigation and an occupational health report was obtained a recommendation was made for mediation. Mr Smith did not want to attend mediation but it was nonetheless arranged to take place on 23 May 2013. On arrival with his union representative he was told that the mediation was not going to take place and, instead, he was suspended from work as a result of comments retrieved from his Facebook page.

The information retrieved included derogatory comments about managers and a reference to “being drunk while on standby”. Comments found by the Employment Tribunal to have been posted by Mr Smith are listed in the judgment. I won’t reproduce them here. Suffice to say that they use very strong language and are clearly very derogatory about Mr Smith’s employer and his managers.

Mr Smith admitted that he had posted the comments but said that he had not intended to offend anyone and that he had been “indulging in banter”. He said that it was typical to slag off the person on standby and that he had not in fact been drinking. However he also maintained that his Facebook page had been hacked and he did not know that the settings had been changed from private to public.

A disciplinary investigation report was prepared. It was noted that the posts were in any event public and available to be read. They were therefore likely to damage the reputation of both the employer and Mr Smith’s manager. The reference to being drunk while on duty gave the impression of a risk to public health. It was recommended that there should be a disciplinary hearing. Reference was made to the Company’s disciplinary and email and internet policies, the latter including the following:
The following activities may expose [British Waterways] and its employees, agents and contractors to unwarranted risks and are therefore disallowed…Any action on the internet which might embarrass or discredit [British Waterways] (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)…
Mr Smith said that despite what was on Facebook he had never been drunk while on standby. The other things he had said were also in jest. He thought that the timing of the allegations provided a convenient way to prevent his grievance from being investigated. He repeated that he thought that his Facebook page had been hacked and the security settings changed. Notwithstanding his mitigation Mr Smith was summarily dismissed from his employment by letter sent on 4 June.

a trade union with no members

In Akinosun (on behalf of General & Health Workers Union) v The Certification Officer the Employment Appeal Tribunal (Mr Justice Langstaff – President) upheld the refusal of the Certification Officer to list GAHWU as a trade union (from which follow a number of legal consequences, including the possibility of recognition for collective bargaining). The decision came down to the interpretation of the statutory definition of a trade union.

Section 1 of the Trade Union and Labour Relations Consolidation Act 1992 is headed “Meaning of Trade Union” and states:

In this Act a trade union means an organisation, whether temporary or permanent…which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers associations…

Section 2 of the Act provides that the Certification Officer must keep a list of trade unions. It is a question of fact whether or not an organisation fits the description of a trade union. It follows that if the purposes of the organisation do not include the regulation of relations between workers and employers then the Certification Officer cannot certify the organisation as a trade union, notwithstanding any declaration which may have been made. Further, a union carries out collective work for its members. Therefore an organisation which exists to provide representation at internal hearings would not, for that reason alone, be a union.

Mr Akinosun and Mr Adelaja were directors of a company called ERRAS Ltd (an acronym for Employment Rights Representation and Advisory Services), which offered representation to health workers, at a fee. No one from ERRAS could accompany workers at grievance or disciplinary hearings – it not being a union – which was a bit of a gap in the service offered. They therefore set up the General and Health Workers Union (GAHWU), with which they shared an office and facilities with the intention, they said, of the administration of the union being taken over by elected officers, once the union had some members.

dealing with adjournments on medical grounds

What should a tribunal do when a claimant is ill due to stress cased by an employer’s alleged bullying?

This was the question for the Court of Appeal in Riley v The Crown Prosecution Service. The history of relevant events is complicated so please bear with me! Tyica Riley was appointed as a Senior Crown Prosecutor with the CPS in February 2005. In August 2006 she raised a grievance alleging bullying and harassment which was upheld in part. In November 2007 she was transferred to a different team in Lewisham and in August 2008 she went off sick. She never returned to work thereafter. In September 2008 she raised a second grievance and this was not upheld in June 2009. Further it was suggested that the allegations were false and made maliciously. This led to disciplinary proceedings. However in August 2009 an occupational health report was obtained, confirming that she remained unfit to return to work and that removal of the disciplinary process “will significantly improve her ill health”. Also in August her appeal in respect of the first grievance was rejected.

Ms Riley commenced her first employment tribunal claim in September 2009, alleging race discrimination, disability discrimination and whistle blowing. In December 2009 an appeal by another employee against the finding made against him in Ms Riley’s first grievance was upheld and in February 2010 Ms Riley’s appeal against the rejection of her second grievance was also rejected. It was rejected again in March 2010.

In April 2010 Ms Riley commenced her second employment tribunal claim, concerning allegations of bullying by the employee who was the subject of her first grievance. Notwithstanding her continuing absence through ill health a disciplinary hearing was scheduled to take place in early June 2010. Unsurprisingly Ms Riley provided notification that she was unfit to attend. In July 2010 a psychiatric report was obtained which concluded that Ms Riley was “unable to cope or attend any legal proceedings or hearings” and that her problems were “a direct result of her on going legal battle”.

what do you do if someone is too afraid to give evidence?

In Duffy v George the Court of Appeal has considered what a tribunal should do if a claimant is too frightened to attend a hearing. It is easy to imagine situations, particularly with discrimination cases such as this one, in which a distressed employee or former employee is scared of attending a hearing at which the alleged discriminator will be in attendance. As with criminal proceedings it is well known that people may choose not to proceed with what would otherwise be entirely justified claims so that there is a serious risk of injustice, often based on the opponent’s continuing threats or other bullying behaviour. Obviously a most unsatisfactory state of affairs.

Susannah George worked for Taylor Wimpey Homes as a sales executive and Michael Duffy was a projects manager. Ms George complained about sexual harassment by Mr Duffy, exemplified by him giving her a sex toy as a Valentine’s gift and sending her “sexy text messages”. Mr Duffy countered the allegations by claiming that Ms George “gave as good as she got”. Ms George resigned and shortly thereafter Mr Duffy was dismissed.

Ms George brought proceedings against Taylor Wimpey Homes and Mr Duffy. Shortly before the employment tribunal hearing the claim against the former employer was settled. The hearing against Mr Duffy was adjourned. Mr Duffy then sent Ms George a horoscope with, according to the judgment, “a comment implying that she had made up the allegations and would suffer for it”.