Startling Managerial Strife within NHS Trust Revealed

In a startling case which exposed bitter strife at managerial level within an NHS trust, a senior employee who was sworn at and threatened by a colleague has nevertheless failed to convince a judge that she was bullied and harassed into a mental breakdown.

The woman, who was the trust’s Associate Director of Human Resources, claimed that she was persecuted beyond endurance by the ‘high-flyer’ colleague, who had been brought in as a consultant to review the trust’s operations as NHS funding cuts were beginning to bite and who was subsequently appointed over her head.

In seeking substantial damages from the trust, she alleged that not enough had been done to protect her and that her treatment had caused ‘lasting psychiatric injury’, which ultimately led to the termination of her employment contract.

The judge accepted that her colleague had sworn at her during a stormy meeting and had ‘wholly improperly’ threatened her that she could use her influence to damage her career. The threat had left her with a ‘burning sense of grievance’ and caused her ‘real distress and well-founded anxiety’.

However, in dismissing the woman’s claim, the judge found that the one-off incident ‘should not be taken out of proportion’. Although she had not been treated with the respect she deserved, he rejected claims that she had been ‘physically intimidated’ or ‘falsely imprisoned’ during the meeting.

Although her colleague was guilty of ‘significant misconduct’, that was a momentary lapse and, within minutes, the two women had been working normally again. The trust’s senior management had also ‘acted with exemplary speed and resolve’ by immediately terminating her colleague’s appointment.

The judge concluded that the colleague’s behaviour at the meeting was not a ‘course of conduct’ which could amount to harassment or bullying. Her behaviour had also not ’caused or materially contributed’ to the woman’s psychiatric injuries and such an outcome would not, in any event, have been ‘reasonably foreseeable’ by the trust.

University’s Disciplinary Process ‘Not Negligent’

A senior university lecturer whose health and career suffered after she was accused of helping a colleague to create a false and misleading job reference has had her hopes of a substantial compensation payout dashed by the Court of Appeal.

The academic had eventually been exonerated of any wrongdoing following a highly stressful disciplinary hearing. However, she launched proceedings against the university arguing that, had it inquired into the matter as carefully as it should have done, the claims against her would have been abandoned at an early stage.

She initially won her case after a judge found that the disciplinary process had been negligently handled by the university. However, in overturning that decision, the Court ruled that it was ‘plainly wrong’. The judge’s criticisms of the university’s investigation were either misplaced or immaterial and managerial decisions had wrongly been put under the microscope with the benefit of hindsight.

New Guide on Managing Bereavement in the Workplace

The Advisory, Conciliation and Arbitration Service has issued new guidance, developed in partnership with Cruse Bereavement Care and others, which aims to help employers support members of staff who have suffered bereavement.

‘Managing bereavement in the workplace – a good practice guide’ recommends having a clear bereavement policy in place and providing training to managers and selected staff on how to deal with this sensitive issue.

The guidance can be found here.

CIPD/Simplyhealth Annual Absence Management Survey

The Chartered Institute of Personnel and Development (CIPD) has published the findings of its fifteenth employee absence management survey, carried out in partnership with Simplyhealth. This provides useful benchmarking data for organisations on absence levels and the cost and causes of absence, as well as information on employee well-being.

The average absence per employee has fallen from 7.6 days per annum in 2013 to 6.6 days in 2014. There is, however, a considerable variation across organisations. Public sector absence has fallen by almost a day, although at 7.9 days per employee it is still markedly higher than in the private sector (5.5 days). Positive trends that could account for the fall in absence levels include an increased focus on attendance strategies and a notable rise in the number of organisations that are developing line manager capability.

Two-fifths of respondents report that stress-related absence has increased over the past year for the workforce as a whole, whilst a quarter report that it has increased for managers and one in seven that it has increased for senior managers. Workload is rated as the most common cause of stress, followed by non-work relationships/family, management style and relationships at work. Whilst three-fifths of organisations are taking steps to identify and reduce stress in the workplace, a third of those that included stress among their top five causes of absence are not taking any steps to address the issue.

Another interesting finding is the impact on employers of the UK’s ageing population, with nearly a third reporting that caring responsibilities have had an impact on absence in the last year. The most common type of support provided to employees who are carers is flexible working.

The full report can be viewed on the CIPD website after registering for a free account.

Director ‘Still an Employee’ Following Resignation

An entrepreneur who resigned as a director of a company he founded, in order to help it out of cash flow difficulties, nevertheless continued to be an employee and was entitled to tax relief on the profits he subsequently made by selling his shares in the venture.

The company had specialised in arranging corporate finance for IT and telecoms equipment. The businessman had stepped down as a director in order to control costs during a difficult trading period. He had also been distracted by events which were unconnected to the business but had nevertheless continued to be heavily involved in sourcing new customers for the company.

The company was ultimately sold and the businessman realised the value of his 13.5 per cent shareholding. He claimed entrepreneurs’ relief on the capital gain under Section 169 of the Taxation of Chargeable Gains Act 1992, but that was refused by HM Revenue and Customs.

Ruling on the businessman’s challenge to that decision, the First-tier Tribunal (FTT) rejected arguments that he had continued to perform the role of a ‘shadow director’ following his resignation. The influence he had wielded in respect of the company’s governance was limited to that of a significant shareholder.

However, in allowing the appeal, the FTT found that his employment relationship with the company had continued. He had carried on providing his skills and services to the company despite his resignation from the board and, although he had not been remunerated in cash, the company had provided him with a laptop and phone and met the costs of his home Internet contract.

Fireman’s Unfair Dismissal Claim Defeated by Delay

In a reminder to all that, in employment cases, timing can be everything, a sacked fireman has had his compensation hopes dashed after he delayed too long before seeking professional advice and launching his unfair dismissal claim.

Fire enginesThe fireman had been summarily dismissed for alleged gross misconduct on 24 August 2012. That was his last day at work; however, he subsequently appealed and the finding against him was reduced to simple misconduct in January 2013. As he had already received a final written warning, his dismissal was nevertheless confirmed, although he was granted a payment in lieu of notice.

He subsequently lodged an unfair dismissal claim. However, an Employment Tribunal (ET) found that his effective date of dismissal was 24 August 2012. On that basis, he had launched his claim outside the three-month time limit which normally applies to employment cases and his claim was struck out for delay.

In rejecting his challenge to that decision, the Employment Appeal Tribunal pointed out that the man’s employer had explicitly stated that the date of his dismissal was 24 August 2012 and had given reasons for his dismissal in writing. His subsequent partial success on appeal did not change the position. The ET was plainly right to conclude that it would have been practicable for him to have launched proceedings before the expiry of the three-month deadline.

Date Set for Tribunal Fees Judicial Review

Following the introduction of Employment Tribunal (ET) fees in July 2013, the UK’s largest public service trade union, Unison, supported by the Equality and Human Rights Commission, brought judicial review proceedings challenging the lawfulness of the new regime on the basis that it would make it ‘virtually impossible, or excessively difficult’ for many people of modest means to exercise their right to bring an ET claim and would discriminate against employees with a protected characteristic.

The challenge was dismissed by the High Court in February 2014. Whilst understanding Unison’s belief that the lawfulness of the fee regime had to be challenged ‘as a matter of urgency’, the ‘fundamental flaw’ in the proceedings was that there was as yet insufficient evidence to support the arguments made for overturning it.

Since that time, quarterly statistics published by the Ministry of Justice show a substantial year-on-year fall in the number of ET claims received, with only 8,540 new claims lodged in April to June 2014, 81 per cent fewer than in the same period last year.

Unison was granted permission to appeal against the ruling and the judicial review will be heard on 21 and 22 October 2014.

Lupus Victim Suffered NHS Disability Discrimination

NHS Sign 2A clinical technician who was awarded £166,595 in compensation after she was forced to resign from her NHS post because of health problems has failed to convince the Court of Appeal that the payout was nowhere near enough to reflect her true loss of earning potential.

The woman resigned from her hospital position a year after she was diagnosed with lupus, a condition which causes joint pains, skin rashes and fatigue. Her NHS Trust employers had made wholly inadequate efforts to enable her to return to work and an Employment Tribunal (ET) upheld her disability discrimination and constructive unfair dismissal claims.

She was initially awarded compensation of £105,643, but that was increased to £166,595 following a re-assessment. However, she remained dissatisfied with the level of the award and argued that the impact on her future earning capacity and the true value of her long-term financial losses had been greatly under-estimated.

The Court found that the ET had been justified on the evidence in concluding that the woman would be able gradually to return to her previous level of earnings over a 12-year period by working in an administrative role and gaining promotion into management. However, in allowing her appeal in part, the Court found that her pension loss had been valued on a mistaken basis and remitted that issue for a further ET hearing.

Publishing Company Whistleblower Wins £18,000 Damages

A publishing company employee who was sacked for whistleblowing has won more than £18,000 in damages after the Employment Appeal Tribunal (EAT) rejected arguments that her own blameworthiness was such that her dismissal was inevitable.

The woman had complained that she and other members of the company’s administrative staff were unfairly paid less than its sales team. She was dismissed on the basis that she had disclosed confidential payroll information. Her attitude towards other members of staff was also criticised and she was alleged to have shown disrespect to a director.

The Employment Tribunal (ET) upheld her whistleblowing claim, brought under the Employment Rights Act 1996, and awarded her total damages of £33,941 for her unfair dismissal. However, the employer’s appeal against the size of her award was subsequently allowed and the ET was directed to examine the matter afresh.

At the second time of asking, the ET ruled that the woman was entitled to a basic award of only £2,992 after finding that her own conduct meant that her dismissal had been a 100 per cent certainty. However, in allowing her appeal against that decision, the EAT found that the reasons given by the ET were inadequate to the point of being ‘impossible to understand’ and that its refusal to make any compensatory award was ‘perverse’.

The EAT chose to revisit the issue itself, rather than send the matter back for yet another hearing. It ruled that it was ‘by no means inevitable’ that the woman would have lost her job but nevertheless found that a substantial reduction in her award was appropriate. Her final payout came to just over £18,000.

Equal Pay Audits – ET’s New Powers

Under the Equality Act 2010, it is unlawful for an employer to discriminate between men and women in terms of their pay and conditions where they are in the same employment and are doing the same or similar work, work rated as equivalent or work of equal value. An employer only has a defence against a claim of sex discrimination with regard to pay where the difference in contractual terms is due to a ‘material factor’ which is not directly or indirectly discriminatory.

From 1 October 2014, the Equality Act 2010 (Equal Pay Audits) Regulations 2014 apply to Employment Tribunal (ET) claims presented on or after that date where the employer has been found to have breached the equal pay provisions of the Equality Act.

The Regulations set out the circumstances in which the ET must order the employer to carry out an equal pay audit, the required contents of the audit and the timetable for ensuring compliance with the order.

Failure to comply with an order may result in a penalty not exceeding £5,000, with possible additional penalties for employers who continually fail to comply with an order.

If you would like assistance with carrying out a review of the pay and conditions of your workforce to check that these are fully compliant with equal pay legislation, contact us.

The Equality Act 2010 (Equal Pay Audits) Regulations 2014 can be found here.