EASTBOURNE HOSPITALS & UNFAIR DISMISSAL

 

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EASTBOURNE HOSPITALS TRUST

 

Occupational Health and Health and Safety Working Group

 

The Occupational Health and Health and Safety Working Group works with our Healthy Workplaces team to identify new work streams and issues which apply to the occupational health and health and safety remit in the NHS. The group meets formally twice per year and the majority of communications in between are via e-mail.

Members are:

  • Karen Broughton, Director of HR, Westminster PCT

  • Jill Ashley Jones, Director of Organisational Development & Strategic HRM at Solihull PCT

  • Elizabeth Richards, Business Manager, Occupational Health, Stockport NHS Trust

  • Kim Doherty, Director of Human Resources, Liverpool Women's Foundation Trust

  • Jane Mitchell, Senior Nurse/Occupational Health Manager, Bradford Hospitals NHS

  • Keith Marshall, Camden PCT, Islington PCT, and Camden & Islington MH & Social Care Trust

  • Pam Duke, Occupational Health Services for Camden PCT

  • Claire Brown, Occupational Health Manager, Peterborough & Stamford Hospitals NHS Foundation Trust

  • Jim Stirton, Assistant HR Director, East Sussex Hospitals NHS Trust

  • Frances Morris, Assistant Director, Business Operations Human Resources & Organisational Development Directorate, Dudley Group of Hospitals NHS Trust

  • Keith Higgs, Health & Safety Advisor and Risk Manager, Uni Hospital Coventry & Warwickshire NHS Trust

  • Fran Hook, Assistant HR Director, Hertfordshire Partnership NHS Trust

  • Sue Scott, Head of Human Resources, Greenwich PCT

  • Maggie Woods, HR Manager, Suffolk East PCT

  • Andrew Gilbey, Assistant Director (Occupational Health), York Hospitals NHS Trust

  • Carole Hunter, Head of Occupational Health Services, Hull & East Yorkshire Hospitals NHS Trust

  • Gillian Morris, HR Manager (Primary Care), Enfield PCT

  • Nicola Brackey, HR Officer (Primary Care), Enfield PCT

  • Perry Woodhouse, Technical Instructor 1 & Unison Health & Safety Officer, Notts Healthcare Trust

  • Adrian Warrren, Health & Safety Manager, Cheltenham and Tewksbury PCT

Source:  http://www.nhsemployers.org/practice/

 

 

 

Monica Green Eastbourne Hospitals Trust NHS Director of Human Resources

 

EDGH Director of Human Resources - Monica Green

 

Monica Green was appointed as Director of Human Resources in June 2002. Prior to this Monica worked, from 1997, as HR Director for Eastbourne Hospitals NHS Trust. Monica has worked within the NHS since 1987 in a wide variety of Human Resources roles, both within the acute hospital sector and at a Regional Health Authority level.

 

Monica has both an Honours degree in Sociology and a Master degree in Business Administration as well as professional qualifications. Prior to working for the Health Service Monica worked in the private sector.

 

LITIGATION

 

The Trust has for some time been slimming down certain departments to cut costs. In so doing some people will lose their jobs. Yet, rather than come out and say so, it appears that the Trust are simply telling people they have no job to go to and are asking them to consider applying for other jobs. The Trust are calling this redeployment, but as every employer will know, redeployment is where an employee is offered another position, which has already been approved. Thus the employee simply moves to another position.

 

One such instance has come to our attention, where the Occupational Health department are likely to be subject to an Employment Tribunal for unfairly dismissing a member of staff formerly the office administration manager for Occupational Health. This department is being joined with the other departments from Hellingly and Hastings to form one unit to cover all three. Although this decision has yet to be confirmed and we will be making our own investigations in due course. 

 

Ironically, the jobs in question are the lower paid staff (lower than nurses), yet high rolling surgeons and doctors, who need the efficient support of an administration service, continue to receive fat salaries! Even more ironic perhaps, is that this same department which is supposed to care for the health of others, may well be found to have been causal in creating high stress levels leading to mental health issues, in their own staff.

 

The case continues ............................

 

 

LINKS and REFERENCES

 

 

 

 

Step one: who cannot claim unfair dismissal

 

There are some employees who can never claim unfair dismissal. They are:-

 

  • people who are not employees, such as independent contractors or freelance agents. Employers often claim that people who are actually employees are self-employed. It is important to check the relationship between the employee and their ‘employer’, because this will determine the employee’s actual employment status

 

For more details, see under heading Are you an employee or self-employed in Contracts of employment.

 

  • police officers

  • members of the armed forces

  • share fishermen

  • people who work outside Great Britain

  • registered dock workers

  • employees above the normal retirement age for their occupation (but see below).

 

Are you below normal retirement age

 

You can only make a complaint of unfair dismissal if you are below the normal retirement age for your job, unless you are making a claim for unfair dismissal for a reason which is an automatically unfair one, see under heading Step four: What is the reason for the dismissal and is it one which means the dismissal is automatically unfair.

 

The retirement age must be the same for men and women and might not be the same as the state retirement age. For example, fire-fighters are expected to retire at 55 and cannot make a claim for unfair dismissal after that age. If there is no normal retirement age for the job, or if there is one but it is never enforced, then you can make a claim up to the age of 65.

 

 

Step two: have you actually been dismissed

 

What counts as dismissal

 

You are dismissed when your employer brings the contract of employment to an end.

 

All the following count as dismissal:-

 

  • your employer ends your employment with or without notice

  • your employer does not renew a fixed term contract that has run out

  • you are made redundant, including if you take voluntary redundancy

  • your employer refuses to take you back after a strike or lockout

  • constructive dismissal. This is when your employer makes it impossible for you to carry on working so you resign (see below)

  • you resign under pressure from your employer (see below)

  • if you are a woman on maternity leave, and your employer refuses to allow you to return to work after maternity leave

  • self dismissal. An employer may argue that you have dismissed yourself by behaving in a way that brings the contract to an end. However, unless it is obvious that you have actually resigned, you will have been dismissed by your employer

  • you have been laid off or put on short time working when your contract does not allow for this.

If you are an employee who wants to claim redundancy after a lay off or period of short time working, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

 

What does not count as dismissal

 

If you are in any doubt at all as to whether you have been unfairly dismissed, you must seek advice from an experienced adviser as soon as possible, for example, a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because any claim for unfair dismissal must be made to an employment tribunal within three months of the date of the dismissal.

 

The following will not count as dismissal:-

 

  • you resign without any pressure from your employer or leave by mutual agreement (but see below)

  • you are suspended on full pay

  • your employer withdraws a job offer before you start work (see below)

  • circumstances change and you can no longer continue to work for your employer. This is known as frustration of contract (see below)

  • you are laid off or put on short-time working and your contract allows for this, and then you claim redundancy. You are then actually resigning

 

If you are an employee in this situation you should consult immediately an experienced advisor, for example, a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

  • you receive an ambiguous dismissal from your employer and it is not clear if the employer is dismissing you or not.

 

What does not count as dismissal - resignation

 

It is important to remember that what is called a ‘resignation’ may really be a dismissal. Whether the employee has resigned or they have been dismissed depends on who really terminated the employment contract.

 

Normally, if you resign, you bring the employment contract to end and so you have not been dismissed. However, there are circumstances where, although you have resigned, you will still be treated as being dismissed. This could be:-

  • if you resigned under pressure from your employer

 

If you have been forced under pressure to resign, you should consult an experienced adviser immediately, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

  • if no notice has been given but it is clear that dismissal is imminent, for example, your work is being given to other people. This could be constructive dismissal (see below)

  • if you resigned in the heat of the moment, for example, during an argument, and your employer will not subsequently agree to let you retract your resignation, or if you gave an ambiguous statement which your employer has taken to mean a resignation, and will not allow you to retract it.

 

If you are in any of these situations you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

 

What does not count as dismissal - suspension on full pay

 

If you are suspended, for example, to await the outcome of a disciplinary hearing, your contract of employment will continue to run until either you resign or are dismissed.

 

If you are in this situation you should consult an experienced adviser immediately, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

 

What does not count as dismissal - withdrawal of a job offer

 

Where an employer has made an offer of a job to you, but subsequently changes their mind, you may be able to claim compensation if the job offer was unconditional. You may be able to claim compensation for giving up your old job.

 

If the job offer was conditional, for example, it was made subject to references or medical examination, and these were unsatisfactory, you will not be able to claim compensation.

 

 

What does not count as dismissal - frustration of contract

 

Frustration of contract happens when an employee cannot fulfil their contractual obligations because of an unforeseen change of circumstances. If a contract has been frustrated, this means that it no longer exists and neither the employer nor the employee has any obligations under it. There is therefore no dismissal.

 

The two most common ways in which a contract may be frustrated are long-term sickness or injury of the employee, and imprisonment of the employee.

 

It is common for employers to claim that the employment contract has been frustrated when they are actually dismissing an employee unfairly. If your employer is trying to claim the contract has been frustrated, you must consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

 

Constructive dismissal

 

Constructive dismissal occurs if you resign because your employer breaches the employment contract, by taking action such as cutting your pay, changing your working conditions, and so on, and so makes it impossible for you to continue working.

 

Is very difficult to make a claim for constructive dismissal, and if you think it is impossible for you to carry on working you should seek help from an experienced adviser immediately, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because there is a time limit from the date of dismissal within which you must make a claim.

 

For more information in England, Wales and Scotland about your rights when your employer makes changes to your employment contract, see Changes to employment contracts in Employment fact sheets.

 

 

Step three: have you been discriminated against

 

You may believe that you have been dismissed because of because of your sex, race, disability, religion, sexuality or age.This is discrimination. You can make a claim for discrimination to an employment tribunal (or industrial tribunal in Northern Ireland) instead of, or in addition to, a claim for unfair dismissal. You do not have to have worked for any particular length of time to be able to claim discrimination.

 

If you have been dismissed for a discriminatory reason you will almost always have been unfairly dismissed as well. However, in order to claim unfair dismissal, you will need to have worked for your employer for one year.

 

In England, Wales and Scotland, see also What can I do if my employer treats me unfairly because of my religion or belief? and What can I do if my employer treats me unfairly because of my sexuality? in Employment fact sheets.

 

 

 

Step four: what is the reason for the dismissal and is it one which means the dismissal is automatically unfair

 

The reason for the dismissal decides what action you can take. The reason your employer has given you may not be the real reason for the dismissal.

 

In most circumstances, if your employer wants to dismiss you, they must follow proper dismissal and disciplinary procedures laid down by law. If they do not, and you have worked for your employer for at least a year, your dismissal will be automatically unfair - see under heading Procedure your employer must follow when dismissing or disciplining you.

 

 

Automatically unfair dismissal, where it does not matter how long you have worked for the employer

 

If the reason for the dismissal was any of those listed below, an employment tribunal (industrial tribunal in Northern Ireland) will automatically decide that the dismissal was unfair. If you were dismissed for one of the following reasons you can still claim unfair dismissal regardless of how long you have worked for the employer and regardless of how old you are:-

  • pregnancy. If you are dismissed because you are pregnant or on maternity leave or a related reason

 

For more information, see Parental rights at work

  • if you are dismissed for trying to enforce a right you have under law, you will automatically be treated as having been unfairly dismissed

 

For more information about statutory employment rights, see Basic rights at work

  • if you are dismissed for taking action over a health and safety issue

 

If you think you may be dismissed if you report a danger to health and safety at the workplace, or if you think you have been dismissed for a health and safety reason, you should consult an experienced adviser immediately, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

  • in England, Wales and Northern Ireland, if you are a shop or betting worker refusing to work on a Sunday

  • if you are a trustee of an occupational pension fund

  • if you are a trade union member or have taken part in trade union activities including official industrial action, or have acted as an employees’ representative

  • if you have ‘blown the whistle’ on a matter of public concern at work

 

If you have been dismissed for one of the above reasons and want to take a claim to an employment tribunal (industrial tribunal in Northern Ireland), you should seek the help of an experienced adviser as soon as possible, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because a claim to a tribunal must be made within three months of the date of the dismissal.

 

 

Automatically unfair dismissal, where you must have worked for your employer for one year

 

If you have not been dismissed for one of the reasons listed above but have been dismissed for one of the following reasons, and have worked for your employer for at least a year, an employment tribunal (industrial tribunal in Northern Ireland) will find that you have automatically been unfairly dismissed:-

  • your employer has not followed a proper dismissal procedure before dismissing you - see under heading Procedure your employer must follow when dismissing or disciplining you.

  • transfer of the employer’s business. If the dismissal is as a result of the business you work for having been taken over by a new owner, the dismissal will be automatically unfair and you can make a claim provided you have worked there for one year

  • not declaring a spent conviction.

 

If you think that the reason for your dismissal may be one of the above, you should immediately consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because a claim to an employment tribunal (industrial tribunal in Northern Ireland) must be made within three months of the date of the dismissal.


Step five: is the reason for the dismissal one which is not automatically unfair

 

If you have not been dismissed for one of the reasons above (see under heading Step four: What is the reason for the dismissal and is it one which means the dismissal is automatically unfair), then the dismissal may have been fair or unfair depending on the reason for it and the procedures followed by your employer in dismissing you. If the reason for the dismissal was not one of those above (see under heading Step four: What is the reason for the dismissal and is it one which means the dismissal is automatically unfair), you will have to have worked for one year for your employer in order to make a claim to an employment tribunal (industrial tribunal in Northern Ireland).

 

Reasons for claiming unfair dismissal where you will have to have worked for one year to be able to claim are:-

 

  • your employer says you are not capable of doing the job (see below)

  • your employer says you do not have the necessary qualifications to do the job (see below)

  • your employer says your conduct has been poor (see below)

  • your employer says you have done something illegal (see below)

  • your employer says you are redundant (see below)

  • some other reason your employer has given for dismissing you.

 

It is important to remember that there is a three month time limit, starting from the date the employee is dismissed, during which s/he must make a claim to an employment tribunal (industrial tribunal in Northern Ireland) (see under heading What to consider if making a claim for unfair dismissal). If you are an employee in any of the above situations and wish to claim unfair dismissal you should consult immediately an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

 

 

Your employer says you are incapable of doing the work, including illness

 

This may relate to the level of skill needed to do the particular job or to the fact that you have been ill and so your employer thinks you are not capable of doing the work.

 

Some employees who are ill may be protected by the Disability Discrimination Act.

 

If you have been dismissed for a capability reason, you should seek advice from an experienced adviser as soon as possible, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because any claim to an employment tribunal needs to be made within three months of the date of the dismissal.

 

 

Your employer says you do not have the necessary qualifications to do the job

 

You may be dismissed because you are not qualified, or are no longer qualified, to do your job. For example, if your job involves a lot of driving and you have lost your driving licence. Whether this will be a fair reason to dismiss you will depend on, in this case, how much driving the job involved, whether anyone else could have done the driving, how long you had lost your licence for, and so on. The employment tribunal (industrial tribunal in Northern Ireland) would decide whether the dismissal was fair or unfair, taking into account all the circumstances of the case.

 

If you have been dismissed for a reason to do with lack of qualifications, you should seek advice from an experienced adviser as soon as possible, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because any claim to an employment tribunal (industrial tribunal in Northern Ireland) needs to be made within three months of the date of the dismissal.

 

 

Your employer says your conduct is poor, including gross misconduct

 

Certain types of behaviour by an employee are thought to be unacceptable and if the employee has behaved in this way, any dismissal as a result will probably be fair. Some forms of unacceptable behaviour are known as gross misconduct and include theft at work, violence at work, harassment (such as sexual or racial harassment) of other employees or customers, and breach of health and safety rules.

 

Others types of behaviour which have been found to be misconduct include the following list. Whether the dismissal which results from such behaviour is fair or not will depend on the circumstances of the case and the employment tribunal (industrial tribunal in Northern Ireland) would decide this taking into account all the circumstances of the case:-

 

  • time-keeping and absenteeism

  • refusal to obey a reasonable instruction from the employer, for example, refusing to wear particular clothing at work where the clothing is needed for health and safety reasons

  • insolence or rudeness, including use of bad language. Things said in the heat of the moment would not usually justify a dismissal

  • carelessness. If an employer has previously accepted poor standards from an employee without any warning, then dismissing them for another example of carelessness is likely to be an unfair dismissal

  • criminal activity at work

  • fighting or violence at work. An employment tribunal (industrial tribunal in Northern Ireland) would look at all the circumstances of the case, such as whether the employee was acting in self defence, whether they were provoked, how previous incidents of fighting have been dealt with by the employers

  • drinking or using/taking drugs during working hours (including possessing drugs or drink at work) and sometimes out of work, is usually treated as gross misconduct but will depend on the circumstances of each case. For example, if the employee works in a workplace where everyone goes for a drink on Friday lunchtime and all come back for work late, it would be unfair for the employer to pick on any one employee to take action against.

 

If you have been dismissed for a reason to do with misconduct, you should seek advice from an experienced adviser as soon as possible, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because any claim to an employment tribunal (industrial tribunal in Northern Ireland) needs to be made within three months of the date of the dismissal.

 

 

Your employer says you have been made redundant

 

Employers often claim that an employee is redundant when this is not true, and the employee has actually been unfairly dismissed. The law on whether the redundancy is genuine or not is very complex, and in order for a redundancy to be a fair reason for dismissal, an employer would need to show to an employment tribunal (industrial tribunal in Northern Ireland) that:-

 

  • it was a genuine redundancy; and

  • the employer consulted properly with all the affected employees. There are rules under law about how such consultation must be carried out; and

  • the employee was fairly chosen for redundancy out of all the other employees; and

  • the employer has offered any suitable alternative employment which was available to the employee.

 

If you have been dismissed for a reason to do with redundancy, you should seek advice from an experienced adviser as soon as possible, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB. This is because any claim to a tribunal needs to be made within three months of the date of the dismissal.

 

 

Procedure your employer must follow when dismissing or disciplining you

 

In England, Wales and Scotland, your employer must follow a set procedure when dismissing or disciplining you. If they do not, any dismissal will be automatically unfair and you will be able to make a claim for unfair dismissal to an employment tribunal (as long as you have worked for your employer for at least a year). If you win your case, the tribunal will increase the compensation awarded to you because your employer did not follow the procedure.

 

In England, Wales and Scotland, for more information about the procedures your employer must follow when dismissing or disciplining you, see What you need to know, Dealing with grievances, dismissal and disciplinary action at work.

 

 

 



 

Procedure your employer must follow when dismissing or disciplining you

 

In most circumstances, if your employer wants to dismiss you or discipline you, they must follow proper dismissal and disciplinary procedures laid down by law. Before dismissing or disciplining you, your employer must:

  • send you a written statement, telling you why they want to dismiss or discipline you

  • hold a meeting with you to discuss the matter

  • hold an appeal meeting with you, if you want to appeal against your employer's decision.

 

After the meeting with you, or the appeal meeting if there is one, your employer must make a final decision about what they are going to do, and tell you what it is.

 

If they are dismissing you, your employer must tell you when the dismissal is to take effect, and how much notice they are giving you. They do not have to do this in writing, but it would be good practice to do so. Notice of dismissal must be given directly to you and not through a third party, for example your trade union.

 

If you are not happy with your employer's decision and you think your rights have been ignored, you may be able to take your case to an employment tribunal. You must comply with the dismissal and disciplinary procedure first. If you do not, any future award you get from a tribunal may be reduced. If your employer does not follow the proper procedures, any dismissal will be automatically unfair and you will be able to make a claim for unfair dismissal to an employment tribunal (as long as you have worked for your employer for at least a year). If you win your case, the tribunal will increase the compensation awarded to you because your employer did not follow the procedure.

 

For more information about the procedures your employer must follow when dismissing or disciplining you, see What you need to know, Dealing with grievances, dismissal and disciplinary action at work.

 

If you think your employer did not follow proper procedures before dismissing you, you should consult an experienced adviser, for example at a Citizens Advice Bureau, immediately. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.nearest CAB. This is because there is a three month time limit, from the date you are dismissed, during which you must make a claim for unfair dismissal to a tribunal.

 

 

 

 

 

LINKS and REFERENCES

  • NHS guide from the BBC - includes charts and statistics

NHS sites

UK and devolved government sites

Other sites

 

 

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With thanks to Action Groups around the world for the supply of real case history and supporting documents.