Healthcare News

This edition of the newsletter focuses on cases brought by Claimants employed in the healthcare sector.

A recent case dealt with an unusual situation where the Claimant was the spouse of the Respondent. Apparently there is no animosity whatsoever between the Claimant and her husband and they are still happily married.

The Claimant, Mrs Hutcheson, commenced work for her husband’s dental practice in 2008 following an agreement with her husband and his business partner, Ms Robertson, that she would initially work for free for one year with the aim of becoming a paid employee thereafter. However following a dispute with a colleague in June 2010, Mrs Hutcheson resigned and claimed unfair dismissal. The Tribunal rejected her claim on the basis that whilst she had in fact been taken on as a paid employee on £1500 per month from August 2009, her “work” prior to that date had not constituted a formal contract. As such, she was unable to claim unfair dismissal as she did not have one year’s qualifying service.

A further issue in the claim involved determining the terms of an initial agreement between the parties under which Mrs Hutcheson claimed had included a promise that her salary would be £3000 per month after the first year, which the Respondent emphatically denied.

Although an undoubtedly unusual scenario, this case highlights the risks associated with informal working arrangements. These are often seen within smaller businesses in the healthcare sector. Employers are reminded of the need to formalise contractual terms and working arrangements, whether involving a spouse or otherwise, in order to protect themselves from potentially costly Tribunal claims.

A further case in the healthcare sector dealt with the issue of whether a “lewd” comment justified summary dismissal.

In Bowater and NW London Hospitals NHS Trust, the debate has been re-opened as to the type of conduct which can potentially amount to gross misconduct and subsequently justify summary dismissal.

The Claimant in this case was a staff nurse who, whilst volunteering to help restrain a patient during a seizure. The Claimant was dismissed for gross misconduct six weeks later and brought a claim for unfair dismissal. An important aspect of her claim surrounded her previously unblemished disciplinary record and further, no member of the public, including any of the patient’s family or friends had overheard the comment.

The original Tribunal felt that “a large proportion of the public” would have considered the comment merely humorous and held that the Claimant had been unfairly dismissed. However, the EAT overturned this decision, stating this was an irrelevant factor. The EAT said the correct test should have been how a reasonable NHS Trust would have treated the comment.

On appeal, the original decision of the Tribunal was restored, with the Court of Appeal confirming that the correct “band of reasonable responses” test had been applied and making the comment that the EAT had been overly critical. The Court of Appeal went further, suggesting that in such cases the EAT should “pay proper respect” to an original Tribunal’s decision and not under the “guise of perversity” substitute their own decision.

This case illustrates the uncertainties surrounding the level and type of conduct which can justify summary dismissal. The correct test is whether the decision can be said to fall within a “band of reasonable responses”. The Tribunal is not entitled to substitute its own decision for that of the employer.

To ensure protection in such situations, employers are advised to consider their response carefully, taking into account the history of the employee and an assessment of how the conduct would likely be viewed by a majority of the population.

For further information regarding the cases in this bulletin or for advice on any other employment issue, please contact Sally Bird

Comment

Was this helpful?
No Very

Name (optional)

Website (optional)

Email Address (optional)

Enter Word Verification in box below

Comment (optional)