Employment Briefing - March 2013

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• Court Injunction Prevents Internal Disciplinary Proceedings
• Part-time Pensions
• Can or Can’t – The Evolving Definition of ‘Disability’

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Court Injunction Prevents Internal Disciplinary Proceedings

When the relationship between an employer and an employee breaks down and the exit process is not handled correctly the people involved can find themselves at an Employment Tribunal. However the High Court recently intervened in a disciplinary process before it had concluded. The Court of Appeal was asked whether the High Court had been correct to do so in West London Mental Health NHS Trust v Chhabra.

Dr Chhabra was a consultant forensic psychiatrist at Broadmoor Hospital in Berkshire. A complaint about patient confidentiality was made by a civil servant who had been travelling on the same train as Dr Chhabra in December 2009. The civil served alleged that Dr Chhabra had breached patient confidentiality by having patient notes clearly readable by other passengers, discussing patient matters with her secretary and dictating reports.

Following an investigation, the NHS Trust case manager determined that as these were matters of gross misconduct that could lead to dismissal a disciplinary panel should deal with the case. Dr Chhabra admitted the allegations, but she felt that the matter should be handled under the employer’s Fair Blame policy instead. The Fair Blame policy is a separate NHS procedure allows sanctions to be applied which are less severe than dismissal for gross misconduct. The NHS Trust refused to adopt the Fair Blame policy in Dr Chhabra’s case.

Dr Chhabra raised proceedings in the High Court. She sought an injunction to prevent the disciplinary panel from proceeding with the disciplinary hearing. The High Court found that the NHS Trust had erred in categorising the allegations as gross misconduct and granted the injunction. The courts had therefore become directly involved in internal disciplinary proceedings before they had even taken place.

The NHS Trust successfully appealed the decision. The Court of Appeal explained that there was a “threshold” test for employers to consider in cases like these. This means that prior to disciplinary proceedings the seriousness of the case must be considered. The Court of Appeal ruled that, in this case, the case manager had been entitled to exercise judgement and conclude that the threshold for a disciplinary hearing had been crossed given that the nature and gravity of the alleged misconduct. The injunction was recalled and the NHS Trust could proceed with the disciplinary hearing.

Practical Implications: The initial High Court decision is as a clear indicator that courts are willing to intervene in disciplinary proceedings at an early stage and before any decision has been made. This is a useful mechanism for employees facing disciplinary proceedings, but it has time consuming and costly implications for both parties. The decision by the Court of Appeal indicates that, while the courts may intervene, there is a threshold test. 

To ensure you understand that implications of any decision to pursue disciplinary proceedings, the WJM Employment Team can advise you on the correct policies and procedures to have in place and can advise you on what to do if things go wrong.

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Part-time Pensions

The long-running battle between retired judge, Dermod O’Brien, and the Ministry of Justice recently concluded with a decision of the Supreme Court. While this case concerns a part-time judge, the decision will have implications for part-time positions generally.

Mr O’Brien was challenging the Ministry of Justice’s decision not to provide him with a pension. Mr O’Brien had been a Recorder, which is a type of judicial appointment in the courts of England and Wales, until he retired in 2005. He had held the position for 27 years and he argued that he was entitled to the same pension, pro rata, as his full-time colleagues. The Ministry of Justice rejected this.

The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 provide protection to part-time workers. The regulations are intended to prevent a part-time worker from being treated less favourably than a full-time colleague. Mr O’Brien brought a claim to the Employment Tribunal, alleging that the Ministry of Justice had failed breached the requirements of the regulations.

The Ministry of Justice argued that the protection afforded by the regulations did not apply in these circumstances as recorders are ‘office holders’ and not ‘workers’.

Since 2005, the case has worked its way through the Employment Tribunal, the Employment Appeal Tribunal, the Court of Appeal, the Supreme Court and the European Court of Justice (ECJ). The ECJ provided guidance on the case before sending it back to the Supreme Court for it to make its judgement.

The Supreme Court narrowed the case down to two issues. The first was whether the relationship between the Ministry of Justice and a judge was substantially different to the usual relationship between an employer and a worker. The Supreme Court called this ‘The Worker Issue’. The secondly was whether the difference in treatment of recorders compared to full-time or salaried judges was justified by objective reasons. The Supreme Court called this ‘The Objective Justification Issue’.

Following guidance from the ECJ, the Supreme Court ruled that recorders were ‘workers’ in terms of the regulations because they are effectively under the control of another whilst working in that capacity. There was no objective justification for the different treatment between part-time and full-time judges, because that would amount to blanket discrimination and undermine the principles of the European legislation. Although the Ministry of Justice argued that paying pensions to part-time workers would reduce the pension pot available for full-time judges, the Supreme Court stated clearly that the principle of equal treatment cannot take into account that a worker’s pension is to be paid from State funds.

Practical Implications: The various definitions involved here mean that it is difficult for employers to identify which rules apply to particular employees. Various types of employees, particularly in the public sector, could be classed as ‘office holders’. This case emphasises that where the spirit of European legislation is to prevent disparity of treatment, narrow interpretations of terms such as ‘workers’ are unlikely to be successful when challenged in courts and tribunals.

The WJM Employment Team can assist you to make sure you that you identify the legislation that applies to you and guide you on how to apply it correctly in your workplace. Contact us to find out more about the training we can provide at your workplace.

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Can or Can’t – The Evolving Definition of ‘Disability’

Employment Briefing has previously reported on how courts and tribunals define a ‘disability’ for the purposes of discrimination legislation. The recently implemented Equality Act 2010, and its predecessor the Disability Discrimination Act 1995, both provide a definition of the term ‘disability’. According to both Acts, a disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. This definition is so wide that it evolves as cases are decided by courts and employment tribunals.

In the recent case of Alderemi v London & South East Railway the Employment Appeal Tribunal (EAT) was asked to consider whether a tribunal should concentrate on the activities an employee cannot do rather than those he can do when considering whether an employee is ‘disabled’.

Mr Aderemi worked at a railway station where he checked tickets and helped passengers. He was on his feet for the majority of his time at work which tended to be in shifts of 9 hours. Mr Aderemi developed a back problem and was no longer able to stand for the long periods. He was dismissed by his employer, South & East Railway, and the potentially far reason of ‘capability’ was given.

Dismissal on grounds of capability covers situations when an employee may be dismissed for a lack of skill, aptitude, health or any other physical or mental quality required to do their job. Dismissals for these reasons are potentially fair, as they relate to the employee’s capability to do the job that they were employed to do. However in cases of dismissal for ill-health, if the illness amounts to a disability under the Equality Act the dismissal may be unlawful disability discrimination.

Mr Aderemi made a claim to the Employment Tribunal (ET) of unfair dismissal and disability discrimination. The ET considered the various things Mr Aderemi could do and found that his impairment did not have a substantial adverse effect on his ability to do normal day-to-day activities. It concluded that his condition was not a ‘disability’ for the purposes of the Equality Act and dismissed his claim.

Mr Aderemi appealed the decision to the EAT. The EAT decided that the ET had applied the wrong test. The EAT explained that the ET should have focused on what Mr Aderemi could not do as opposed to what he could do. This would have allowed it to consider the number of things which his condition prevented him from doing, such as standing for periods of around 30 minutes, bending and lifting. The case was remitted back to the ET for a fresh hearing.

Practical implications: Employers are entitled to dismiss an employee with health problems on the grounds of capability. They first have to give careful consideration to any reasonable adjustments which can be made to accommodate the disability. Such consideration should be informed by a medical report. Proper legal advice is essential before any action is taken. The WJM Employment Team can advise you on how to avoid a claim, or can help you if a claim has been made.

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