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This page contains the latest Trade Union News Items and Updates for BDA members and Trade Union Representatives. The most recent item is at the top and items will be deleted once their period of relevance has expired.

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Disciplinary Investigations

Must an employer postpone a disciplinary hearing pending the outcome of a police investigation into an employee?

The Court of Appeal in the case of North West Anglia NHS Foundation Trust v Gregg (https://www.bailii.org/ew/cases/EWCA/Civ/2019/387.html) said no in almost all circumstances.

The circumstances of the case

The Claimant was a doctor facing disciplinary, regulatory and police enquiries after two patient deaths. He was suspended on full pay, a police investigation commenced and the Interim Orders Tribunal a professional disciplinary body, temporarily suspended the doctor's registration and withdrew his licence. Then the Trust sought to stop his pay. The doctor brought proceedings in the High Court.

The High Court granted an injunction preventing disciplinary proceedings pending the end of criminal proceedings, since continuing with the disciplinary process would breach the duty to maintain trust and confidence.

The Court of Appeal overturned the injunction. Noting the 'severe test' for a breach of that implied term, the question was whether the conduct of the employer was calculated to destroy or seriously damage the relationship, and even if it was, whether there was reasonable and proper cause for that conduct. The Court warned against 'micro-management' by the court of an employer's employment procedures. Furthermore, here the Trust was following its own contractually-binding disciplinary procedures; the doctor was himself contractually obliged to participate in the disciplinary process. Only a real danger of injustice would justify an injunction.

The High Court held that suspension had to be with pay during the Interim Orders Tribunal suspension, the Court of Appeal agreed. The starting point was the terms of the contract, interim suspension is now a feature of life for medical practitioners, if the contract intended suspension without pay during suspension, it would have said so and didn't. The doctor was 'ready, willing and able' to work, and the Interim Orders Tribunal suspension was involuntary, this would not permit unpaid suspension in all but exceptional circumstances, with general guidance at paras. 52 to 54.

The Court of Appeal also held that it would not have been wrong for the Trust, having started to investigate alleged misconduct, to 'side-step' the conduct disciplinary process by considering termination on the basis of the doctor losing his licence under the Interim Orders Tribunal suspension. The contract allowed for alternative grounds for termination, and starting one process didn't prevent the Trust from relying on another.

(Thanks for case summary by Ed McFarlane of Deminos HR and Daniel Barnett of the Employment Law Services Ltd).

Posted Tuesday 26 March 2019.


Disability Discrimination

Can unfavourable treatment arise in consequence of a mistaken belief?

The Employment Appeals Tribunal in the case of iForce v Wood (https://www.bailii.org/uk/cases/UKEAT/2019/0167_18_0301.html) said no.

The circumstances of the case

The Claimant was a packer working at a fixed workstation. She suffered from a disability, osteoarthritis, which was exacerbated by damp and cold.

When asked to move between benches she refused saying it would exacerbate her disability. She was issued with a warning which she said was unfavourable treatment arising in consequence of disability. At first instance the tribunal agreed.

The Employment Appeals Tribunal disagreed. Whilst section 15 requires a broad approach, the test is an objective one requiring a connection between the treatment and disability. There need not be an immediate nexus between the 'something' and the disability, but there must be some connection.

Did the 'something' (the warning) arise from the disability?  No, it arose from the Claimant's mistaken belief that moving benches would worsen her condition. There could be no unfavourable treatment arising from a misplaced perception that was not established on the facts.

(Thanks for case summary by Karen Jackson of didlaw and Daniel Barnett of the Employment Law Services Ltd).

Posted Wednesday 20th March 2019.


Indirect Discrimination

When considering if a rule is justified, in an indirect discrimination case, should a tribunal only consider how it was applied to the individual claimant?

The Employment Appeals Tribunal in the case of The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey (https://assets.publishing.service.gov.uk/media/5c87d36fe5274a2a53efa0e2/The_City_of_Oxford_Bus_Services_Ltd_ta_Oxford_Bus_Company_v_Mr_L_Harvey_UKEAT_0171_18_JOJ.pdf) said no.

Circumstances of the case

The Claimant, who was employed by the Respondent as a bus driver, was a Seventh Day Adventist and, in order to observe the Sabbath, asked not to work between sunset on Friday and sunset on Saturday.

He had been given a service that accommodated this but it was not permanent. The Respondent was concerned about the risk of industrial unrest if other drivers asked for time off for other religious events or festivals. The Claimant brought a claim of indirect discrimination on the grounds of religion or belief.

The tribunal upheld his claim. It ruled that the 'provision, criterion or practice' of requiring bus drivers to work 5 days out of 7 put the Claimant at a particular disadvantage, and was not justified. The tribunal held that there was insufficient evidence to support one of the legitimate aims relied upon by the Respondent - maintaining a 'harmonious workforce'.

The Employment Appeals Tribunal overturned the decision. The tribunal had focussed, wrongly, on the particular application of the rule on the Claimant rather than the justification for the rule in general. While the tribunal had recognised that the Respondent's problems arose not from granting the Claimant's request, but from granting many such requests, it failed to balance the Respondent's aims with the potentially discriminatory impact of the rule. The case was remitted back to the same tribunal to reconsider this issue.

(Thanks for case summary by James English of Ward Hadaway and Daniel Barnett of the Employment Law Services Ltd).

Posted Tuesday 19 March 2019.



WSPF Joint Statement re Attendance at Work Policy

The Welsh Social partnership Forum has issued a Joint Statement on the Roll Out of Training to Support the Implementation of the Managing Attendance at Work Policy.

The statement (https://www.bda.uk.com/union/news/joint_statement_on_the_roll_out_of_training_to_support_the_implementation_of_the_managing_attendance_at_work_policy)

Posted: Tuesday 19 March 2019.


The new Trend in Whistleblowing Claims

Following a recent Court of Appeal case, there's a new trend of employees suing directors, line managers and other decision markers, personally for whistleblowing.

The trend follows a recent Court of Appeal case, Osipov v International Petroleum, where two directors who put Mr Osipov through a sham disciplinary process were each held personally liable for $2 million.

There are four reasons why workers are bringing proceedings against decision makers personally, and, indeed, why there is little reason not to bring proceedings against the decision maker as well as the employer.

1.     Claim against the decision-maker is for a detriment.  Such as putting someone
        through a disciplinary, not actually for unfair dismissal.

        The standard of proof is lower for detriment claims than for normal whistleblowing
        dismissal claims, so it's easier for the Claimant to win the claim.

2.     For detriment claims against decision makers, but not for unfair dismissal
        claims, the employee can recover compensation for injury to feelings.

        Such awards are worth up to £42,700, so can make a real difference.

3.     It increases pressure on the Respondent(s).  Particularly if the decision maker
        is the 'owner' of the business and may find his or her home at risk in the litigation.

4.     With multiple Respondents, the employer has additional costs and difficulties to deal with. 

        What if the company wants to settle but the individual does not?  Conflicts of interest
        can arise in a variety of different situations.

(Thanks for case summary by Daniel Barnett of the Employment Law Services Ltd).

Posted Monday 11 March 2019