THE NHS: A TEST BED FOR EMPLOYMENT LAW (2)

Headnote

The UK employment law framework is constantly updated and developed by decisions in cases heard by the higher courts. A number of recent court decisions in hearings involving NHS staff and employers reflect some of the key employment matters which our members frequently raise

Work-related stress

The law states that an employer is liable for psychiatric injury caused by stress at work where a foreseeable injury has arisen from the employer's breach of duty. Foreseeability depends on what the employer knows or ought to know about the individual employee. This is an important aspect of the decision reached by the Court of Appeal in Hartman v South Essex Mental Health and Community Care NHS Trust.

The claimant was a nursing auxiliary at a home for children with learning difficulties. She had previously worked at the home on an agency basis. Before being taken on permanently she was screened by the Trust's occupational health department and completed a confidential questionnaire in which she disclosed that she had had a nervous breakdown the previous year and was receiving medication. On the basis of her record as an agency nurse the claimant was passed as fit for full-time employment. Her health continued to improve until the death of one of the children in the home, coupled with the extra hours she was required to work, caused her to have a relapse. The County Court judge held that the trust were liable because it was reasonably foreseeable that the claimant would suffer psychiatric injury if the trust did not do something to avert the risk. The Court of Appeal disagreed and held that the judge had been wrong to attribute to the trust the information about the claimant that was disclosed in the confidential questionnaire. The Court took the view that the position was correctly stated in Medical Ethics Today:

'The fact that a doctor is a salaried employee gives no other employee of that company any right of access to medical records... With the employee's consent, the employer may be advised of any relevant information relating to a specific matter on a strictly need to know basis, the significance of which the employee clearly understands. If an employer explicitly or implicitly invites an employee to consult the occupational physician, that consultation is strictly confidential.'

This aspect of the Hartman decision has ramifications for claims made under the Disability Discrimination Act. The Act states that an employer has a duty to make an adjustment if they know or can be reasonably expected to know that the worker has a disability. According to the Disability Rights Commission's Code of Practice, information obtained about the worker by the employer's occupational health advisor on the employer's behalf is assigned to the employer. According to Hartman this is not the position, and there is nothing to suggest that this aspect of the decision is limited to claims for psychiatric injury. Workers with disabilities may have to consider whether or not they wish to waive their right to confidentiality and put their employer on actual notice of their disability.

Unfair dismissal

Under section 98 of the Employment Rights Act 1996, employers can rely on a number of potentially fair reasons to challenge a claim of unfair dismissal. In Perkin v St Georges Healthcare NHS Trust, the Court of Appeal has said that employers can dismiss a difficult employee by relying on 'some other substantial reason'.

Mr Perkin was the finance director at the trust from September 1986 until he was asked to resign at the end of July 2002 because of his abrasive management style and poor interpersonal skills. He refused and was suspended. The disciplinary hearings were chaired by Ms McLoughlin, who had previously been involved in discussions about preparing an 'exit strategy' for him. At the hearings, a series of senior colleagues reported that Mr Perkin was aloof, stubborn and intimidating. Mr Perkin accused the chief executive of being a bully and lying about his qualifications.

He was finally dismissed, the principal reason being his poor relationships with other senior colleagues. However, it was added that his conduct at the disciplinary hearing would in any event lead to his dismissal. Mr Perkin claimed that his dismissal was automatically unfair because he had made a number of protected disclosures. The Trust said he had been dismissed for a reason related to his conduct and/or for some other substantial reason (SOSR), namely the 'irretrievable breakdown in relationships to which his behaviour had given rise.'

The tribunal agreed that Mr Perkin had been unfairly dismissed. It was critical of the trust for allowing Ms McLoughlin to chair the meeting. However, the tribunal was certain that he would have been dismissed whoever had conducted the hearings. It is also said that he contributed 100% to his dismissal by his conduct during the disciplinary process. The Employment Appeals Tribunal essentially agreed, although the reason for dismissal, in its view, was SOSR rather than conduct.

Mr Perkin said he had been dismissed because of his personality, which could not be categorised as 'conduct' under section 98(2)(b) of the Employment Rights Act (ERA) 1996. If, however, the dismissal was for SOSR, he said that the tribunal had not provided any factual basis for its decision. For its part, the trust argued that an employer must have the right to take action to address problems of personality, particularly where they impinge on the issues of trust and confidence and are adversely affecting the trust.

The Court agreed with Mr Perkin that personality, of itself, cannot be a ground for dismissal within section 98. Provided the employer can justify the facts, however, then section 98(4) kicks in. The Court of Appeal also thought this was a case that fell within SOSR, rather than conduct (requiring a different fairness test), but that the tribunal was entitled to come to the conclusion that the trust had a potentially fair reason to dismiss Mr Perkin.

Although the dismissal was procedurally unfair, the tribunal was entitled to decide not to award any compensation and to find that Mr Perkin contributed 100% to his dismissal.