Bulletin

The Presidents of the Employment Tribunals (England & Wales) and (Scotland) have issued a joint Second Addendum to the Presidential Guidance originally Issued on 5 September 2017.

It contains the (now) annual update to the Vento guidelines, setting out the bands of awards for injury to feelings, adjusted for inflation.

The new bands are:-

• lower band (less serious cases): £900 to £8,800
• middle band: £8,800 to £26,300
• upper band (the most serious cases): £26,300 to £44,000

These updated figures apply to cases presented on or after 6 April 2019.

Sir Ernest Ryder’s plan for modernising the tribunal system has been published. The proposals include:

• introducing digital case files, to allow judges access to a digital case record and manage the case online

• having a library of relevant templates from which orders, notices, standard letters and documents can be produced

• digitally recording all proceedings in tribunals, to allow transcripts of proceedings to be produced where appropriate (which will mean parties won’t have to argue over their notes of evidence when appealing to the EAT)

Although not guaranteed, it is likely that these plans will be implemented over the coming 24 months.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.

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

No, in almost all circumstances, held the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg.

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 ‘IOT’ (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 IOT 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 IOT suspension was involuntary, this would not permit unpaid suspension in all but exceptional circumstances, with general guidance at paras. 52-54.

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 IOT suspension. The contract allowed for alternative grounds for termination, and starting one process didn’t prevent the Trust from relying on another.

Can unfavourable treatment arise in consequence of a mistaken belief?

No, held the EAT in iForce v Wood.

The Claimant was a packer working at a fixed workstation. He 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. A first instance the tribunal agreed.

The EAT 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.