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News from Eastwoods

30 Oct 18

Prejudicial information about job applicants, including previous allegations, can be lawfully included in an Enhanced Criminal Record Certificate (ECRC) even when there has been no criminal conviction.

October 30, 2018

Two cases this year have looked at the need to balance respect for an individual’s human rights, specifically under Article 8 of the European Convention on Human Rights, with protection of vulnerable people from abuse or exploitation.

Article 8 of the Human Rights Convention protects a person’s right to a private, family and home life.  However, the State can interfere with those rights in order to protect the safety of others, provided that interference is in accordance with the law and necessary in a democratic society.  As the courts have previously observed, a person’s exclusion from a large sector of the job market is likely to have a significant effect on their private life in terms of career satisfaction, development of personal relationships, and the ability to earn a living.

Both this year’s cases arose because anyone applying for certain kinds of jobs or voluntary positions, particularly those working with children or in healthcare, is required to apply for an Enhanced Criminal Records Certificate (an ECRC).

Broadly, an ECRC shows any current, spent and unspent convictions, cautions, reprimands and final warnings. A conviction is “spent” under the Rehabilitation of Offenders Act after a specified amount of time has passed. Crucially, an ECRC may also include any soft information held on file by local police or others which is considered relevant to the role. This could include allegations made against that individual, whether or not they were tested in court and even when the individual was found not guilty. It is for the police to decide what additional information to disclose but they must follow a proper decision making process.

This summer in the case of R (AR) v Chief Constable of Greater Manchester the Supreme Court considered a police decision to disclose summary information in an ECRC about the fact that a man had been charged with rape and acquitted. He had applied for a job as a lecturer in 2011 but at the time of the allegation two years earlier had been working as a taxi driver and wished to work as a taxi driver again.  Both roles required him to apply for an ECRC.  The man said the information disclosed by the police was so prejudicial it would prevent him from being employed in either role. The Supreme Court had to consider whether this was a proportionate interference with his Article 8 rights.

The Supreme Court ruled that it was not necessary for the police to have consulted him about disclosing the rape allegation, or to have conducted a detailed analysis of the evidence given at the criminal trial.   The police’s function was to identify and disclose relevant information. The chief constable had taken the view that the information was not lacking in substance, and that the allegations might be true. The police had properly weighed that information in the Article 8 balance. The information was a matter of public record, concerned a serious alleged offence and related to recent events.

Subsequently, in September, in R (on the application of E) v Commissioner of Police of the Metropolis a man applied to the Court for a declaration that disclosures made on an ECRC to his (by then former) employer and his son’s primary school were a disproportionate interference with his Article 8 rights.  Allegations of sexual assault had been made against him in 2014 by an 18 year old baby sitter. He was tried on two counts of sexual assault, and acquitted in 2016. He subsequently applied to work as a security officer, and separately also as a school volunteer so he could accompany his own child on a school trip. The police consulted him about the wording to be included in the ECRC but he failed to persuade the police not to disclose the information about the sexual assault allegations. The Court decided that the police’s decision to disclose the sexual assault allegations had been made properly, was not irrational, and was not disproportionate.

These may seem harsh outcomes for the individuals concerned. The decisions need to be seen in the context of previous tragic cases such as those of the 2002 murder of two schoolgirls in Soham by Ian Huntley.  Social services in Grimsby had previously looked into 4 separate allegations that he had sex with underage girls, and an allegation of an indecent assault on a 10 year old. In every case bar one the police were also involved. There had also been 3 allegations of the rape of women, and a charge of burglary. Despite all of this background, Huntley had no convictions, although a judge had ordered that the burglary charge should be placed on the police national computer. Huntley subsequently obtained a job as a school caretaker. Vetting procedures were widened following this case and subsequently strengthened and streamlined in 2012.

Parliament and the Courts have decided that disclosure is justified to protect vulnerable people, even  though this encroaches on the Article 8 rights of another group (job applicants and volunteers), provided that an appropriate balance is struck between the interests of the two groups. It is, after all, up to employers to decide, once they have seen an ECRC, whether the information in that document is relevant, and if so, whether it justifies refusing to employ a particular individual.  However, in our experience most potential employers are likely to adopt a risk averse approach.  As Lord Neuberger said in a Supreme Court judgment in 2009 “an adverse ECRC will often effectively shut off forever all employment opportunities for the applicant in a number of different fields”.

 

Jean Sapeta

Consultant lawyer

0203 137 4805

Jean Sapeta

 

26 Oct 18

Ophthalmic Surgeon Successful in Unfair Dismissal Claim Against Trust

October 26, 2018

Simon Eastwood and Anita Puri, who instructed Ben Collins QC, successfully represented a Consultant Ophthalmic Surgeon in a claim for unfair dismissal and breach of contract, after he was dismissed by Heart of England Foundation Trust (now part of University Hospitals Birmingham Foundation Trust) in June 2017.

The dismissal had been based on two incidents in 2016.  The first incident arose when the surgeon had a patient booked in for urgent surgery which had to be performed that day, or the patient was at significant risk of loss of vision in that eye.  When a nurse refused to assist with the operation and the surgeon was told that no other trained clinician was available to assist, the surgeon was left with the choice between cancelling the surgery, which would be likely to lead to loss of sight; or seeking assistance elsewhere.  He therefore asked a manager, who had no clinical experience, to assist.  The surgery was completed successfully, but in enlisting the assistance of the manager, the surgeon was held to have put the patient at avoidable risk.  In the second incident, the surgeon was said to have left his list in the hands of a senior trainee while he attended a meeting, without permission. Again, this was said to have put patients at unnecessary risk, notwithstanding the fact that the surgeon’s list had been completed by the senior trainee without incident.

After the surgeon was dismissed, the Trust referred the case to the General Medical Council, which closed its investigation with no further action after an independent expert advised that, overall, the surgeon’s actions had fallen below, but not far below, the expected standard.

Delivering judgment earlier this month, Employment Judge Broughton concluded that the Trust’s then Medical Director had shown “a strong suspicion of bias” against the surgeon throughout the course of the investigation; that the Trust had in numerous respects failed to follow due process; that the Medical Director had been “deliberately misleading” when referring the matter to the GMC; and that in respect of the second incident, the investigators knew, or ought to have known, that the allegation against the surgeon was false, as he had in fact been permitted to attend the meeting.  In summary, the judge concluded: “No reasonable employer would have viewed these allegations, when appropriately considering all the circumstances, as gross misconduct”.  Whilst concluding that the surgeon had contributed to the decision to dismiss him, the judge concluded that the dismissal had been unfair.  He also concluded that in dismissing the surgeon with immediate effect following its finding of gross misconduct, the Trust was guilty of breach of contract, meaning the surgeon would be entitled to recover the pay due to him in keeping with his notice period.

For a copy of the full judgment, click here.  For press reaction to the decision, click here. The Health Service Journal’s commentary on the case can be accessed by clicking here. 

17 Oct 18

Adam Smith & Stephen Hooper Attend Kidney Fund Evening Reception

October 17, 2018

On 16 October 2018, Adam Smith and Stephen Hooper attended a fundraising event in the Cholmondeley Room at the House of Lords, in support of the South West Thames Kidney Fund (also known as The Kidney Fund) who were celebrating the 20th anniversary of being established as a research unit attached to St Helier Hospital.

The evening was hosted by Lord Rogers of Riverside (whose late father practised as a nephrologist after moving to the UK in 1939), and featured a silent auction of artwork created by South London artists.  All proceeds go to support the pioneering work of The Kidney Fund, a centre for renal education and research with an international reputation.  The Institute is a registered charity which performs ground breaking research into the mechanisms of kidney disease, with the aim of improving the lives of patients now and in the future.

Eastwoods is proud to support the work of The Kidney Fund; and Adam and Stephen greatly welcomed the free tour of the House of Commons!

11 Oct 18

Compensation To Be Awarded After Advice Given at A&E Reception

October 11, 2018

The Supreme Court has decided that a Claimant is to be awarded compensation, after being advised by an A&E receptionist that he might have to wait 4-5 hours to receive treatment for a head injury.  The Claimant decided to return to his mother’s house after waiting 19 minutes, and his condition deteriorated.

Giving judgment in Darnley v Croydon Health Services NHS Trust, Lord Lloyd-Jones overturned the Court of Appeal Judgment of Lord Justice Jackson, stating that the hospital had a duty to ensure no misleading information which might lead to harm is given to patients; and that that duty extends to non-clinical as well as clinical staff.

The case is due to be remitted back to the Queen’s Bench Division for damages to be assessed.

For further details, click here.

28 Sep 18

What Are The Requirements Of The New HMO Regulations?

September 28, 2018

Adam Smith, Partner at Eastwoods, talks about the new rules regarding HMOs whilst, as the first in a series of complementary articles, Quentin Hunt, a barrister and expert in the field, explains more of the consequences of non-compliance.

As a landlord, you may have read that from 1 October 2018 a new definition of HMO (Houses in Multiple Occupation) will come into force. As always with the plethora of rules and regulations in the rental sector, the devil is in the detail and whether your property will fall within the new definition will depend on the precise circumstances.

The key change is that, whereas currently an HMO (subject to mandatory licensing) must be at least three storeys high, from October 2018 one storey will be enough. The requirement of at least 5 occupants (including children) forming 2 or more separate households sharing at least one basic amenity (kitchen/bathroom/toilet) remains. “What does ‘household’ mean?” you ask. Essentially a household comprises members of the same family (which includes cohabiting partners).

Many landlords will already be familiar with the licensing requirements for HMO’s, but what if your property will fall within the new definition where it didn’t previously (e.g. a flat over a shop or a 2-storey house without an attic, occupied by more than a single family)? You are not alone. The Residential Landlords Association estimates the revised definition will capture 177,000 new HMOs! Below are some of the key considerations.

Do I need a licence for my HMO?
HMOs within this definition are subject to mandatory licensing. You will need to obtain (every 5 years) a licence from your local housing authority and pay the licence fee. (‘Additional licensing’ of HMOs of 3 or 4 occupants, on 1 or 2 floors, in an area which the local housing authority has designated as subject to additional licensing remains unchanged, subject to the new floor space requirements.)

Floor space
This is the other area of significant change as of 1 October 2018. Strict minimum floor space requirements will apply to each room used as sleeping accommodation. This will vary according to the age and number of occupants (and structure of the room, e.g. if it has a sloping ceiling) and, to complicate matters further, each local housing authority may impose its own minimums above the new statutory requirement! This change has caused consternation amongst existing HMO landlords, who may find their existing property no longer licensable as an HMO, at least not without costly renovation.

Will I need planning permission?
Apart from any planning permission required in the usual way for any building works, you may also need permission for a change of use. Small HMO’s (usually up to 6 occupiers) fall under use class C4, as opposed to a ‘dwellinghouse’ (use class C3). A change from C3 to C4 might fall under the permitted development rights of your local housing authority. However, if the local housing authority has removed those rights (with what is known as an ‘Article 4 Direction’), planning permission will be required if the change of use is considered ‘material’.

What are the fire safety requirements?
As with all rented accommodation, working smoke alarms must be installed on each floor which contains living accommodation, and carbon monoxide alarms in any room which contains a solid fuel burning combustion appliance. But the requirements for HMOs are somewhat more rigorous. You must ensure that the means of escape from fire are kept free from obstruction and maintained in good order and repair. In practice, there will be a range of requirements in terms of notification, internal doors, locks, windows, emergency lighting, fire-fighting equipment and an alarm system. Unsurprisingly, the equipment you provide must be maintained in good working order and appropriate certification held. A comprehensive fire safety risk assessment will be advisable, if not essential, to obtain an HMO licence.

Must I furnish the property?
Legally, no, but if you want your property to be marketable you almost certainly will (and your local housing authority may make it a pre-requisite of a licence), in which case the furniture must be clean at the outset of each tenancy and kept safe throughout.

Electrical safety
All electrical installations must be inspected and tested at least every 5 years, and a certificate obtained.

Gas safety
You will need an annual gas safety certificate (this is no different from a non-HMO let).

Can I get round the HMO requirements?
Maybe. However, there are only very limited instances in which the HMO requirements do not apply. The extent to which these might be applicable will depend on the particular circumstances of your property and, in practical terms, there is likely to be little opportunity to circumvent the HMO obligations.

Moving in to share the accommodation with existing tenants (unlikely, I know) would not work, as only a maximum of 2 ‘lodgers’ are permitted. If you are contemplating evicting one tenant to come in under the magic 5, this might well be treated by the local housing authority as amounting to a threat to the welfare of the tenant and result in service of a ‘management order’. And don’t even think about lying to your local housing authority – knowingly providing false or misleading information to them is a criminal offence!

Perhaps the most realistic exception is if your property can be occupied by students in full time education, provided the management of the property is undertaken by the educational establishment (which might have the doubly positive effect of taking the management out of your hands).

How long do I have to comply?
Interestingly, the new regulations provide a grace period of up to 18 months from the first licence granted subsequent to 1 October 2018 within which to rectify any issues specifically in terms of the new floor space requirement (although this period may vary between different local housing authorities), but there is no grace period generally regarding the change to the definition of an HMO. So if yours is one of the estimated 177,000 properties that will fall under the definition for the first time, you should be aiming for compliance and the necessary application for a licence by 1 October.

Conclusion
HMOs can still be a good investment, but they need to be set up properly in order to be compliant and to avoid the risk of costly enforcement action by your local housing authority and problems in obtaining mortgage finance. This article is necessarily limited in its scope. There is far greater detail within the legislation and the way in which the requirements are applied is very fact specific, with variation between different local housing authorities and even some of the legal requirements varying as between England and Wales. This is a complex area in which early expert input on how to be compliant could save you a huge amount of stress, not to mention cost, in the future. This is where Eastwoods can help (working alongside expert counsel in the field, where necessary). If you wish to seek advice on how to avoid the pitfalls, or you have already succumbed and need to get out as unscathed as possible, get in touch.

Adam Smith
Partner, Eastwoods
28.9.18

25 Sep 18

Record Keeping: A Silver Bullet?

September 25, 2018

Stephen Hooper has contributed an article to Implant Dentistry Today, on the importance of accurate, contemporaneous clinical records for dental professionals. To read the article in full, click here.

06 Sep 18

Landmark Decision Clarifies Law on Legal Advice Privilege

September 6, 2018

In a key decision handed down this week, the Court of Appeal has concluded that legal advice provided before contemplation of court proceedings should be protected by privilege, in the same way as legal advice given during the course of court proceedings.

In The Director of the SFO v (1) Eurasian Natural Resources Corporation Ltd (2) The Law Society [2018] EWCA Civ 2006, the Court of Appeal overturned the original decision of Mrs Justice Andrews, in which she concluded that certain documents created by lawyers acting for the company, including notes and working documents, would not attract the protection of legal advice privilege because they were created before a prosecution by the Serious Fraud Office (SFO) had been contemplated. The Court of Appeal found that the judge was wrong, both in her interpretation of the facts and the law, and allowed the appeal.

The judgment also considered the principles set out in Three Rivers v The Governor & Company of the Bank of England , which held that communications between employees of a corporation and the corporation’s lawyers would not attract privilege unless that employee was tasked with seeking and receiving such advice on behalf of the client. Although the Court determined that it was not within their remit to formally reject the conclusion in Three Rivers (that would fall for consideration by the Supreme Court) and that they were bound by it, they commented that if it had been open to them to conclude that the decision was wrong, they would have been in favour of doing so.

The decision has been received positively by the Law Society, who appeared as Interveners in the appeal, with the Law Society President, Chrisina Blacklaws, stating: ‘The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure.’

For further information and more detail on the Law Society’s reaction to the judgment, click here.

06 Sep 18

Are employers too quick to suspend employees accused of wrongdoing? Court forces employer to lift eminent doctor’s suspension.

September 6, 2018

The answer this month was a resounding yes in the case of Professor Marjan Jahangiri the first female professor of cardiac surgery in the United Kingdom and Europe who works at St George’s Hospital, Tooting, London. A pioneer of minimally invasive aortic valve surgery she operates on a very high number of complex patients and has been nominated for excellence awards in clinical leadership and training. She has one of the largest clinical practices in the UK and has an important role in cardio thoracic training, being responsible for some 35% of all UK trainee heart surgeons.

Professor Jahangiri was suspended (excluded) by her employer against the background of an inquiry into bickering between rival camps of doctors at the hospital after she contacted an employee through her PA about a separate unrelated disciplinary matter on the advice of a solicitor. She therefore made an application to the High Court for a mandatory injunction which would compel her employer to immediately lift her suspension and take all necessary steps to allow her an immediate return to her clinical and teaching duties.

As an NHS consultant Professor Jahangiri’s contract of employment incorporated her employer’s version of the NHS doctors’ disciplinary procedure “Maintaining High Professional Standards (“MHPS”) which places tight restrictions on the ability of NHS employers to exclude a doctor from work. Exclusion (suspension) under MHPS should only be for the protection of patients or staff, or to assist an investigation process. An exclusion of a doctor must be necessary (a higher standard than “appropriate”) and the least restrictive sanction must be used to meet the circumstances of the case – a “bottom up “approach.

The judge in the High Court looked at the decisions to exclude in detail. He ruled that the employer had not applied the proper test in deciding whether to exclude her; that total exclusion from work was not necessary and exclusion was not a proportionate response. The employer had failed to consider the consequences of the exclusion, including the impact on patients.

The judge ruled that, overall, the decision to exclude Professor Jahangiri was “irrational in the public law sense”, previously defined in a 1985 case as a decision “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” The High Court judge therefore ordered that Professor Jahangiri should be allowed to return to her post and care for her seriously ill patients.

In a 2012 case involving the suspension of two long serving NHS nurses, the Court of Appeal criticised “knee jerk “ decisions by employers to suspend employees. The two nurses were dismissed but the Court of Appeal endorsed an Employment Tribunal decision that the dismissals were unfair.

In that case, Crawford v Suffolk Mental Health Partnership, L J Elias said it seemed to him that suspension was the “almost automatic response “of many employers, irrespective of the likelihood of a complaint being upheld. He pointed out that although suspension is sometimes stated to be in the employee’s best interests, the suspended employee can feel belittled and demoralised by the total exclusion from work. Even employees who are totally cleared of charges can still be the object of lingering suspicions, as a suspension can add credence to allegations. The suspension itself can damage an employee’s reputation, even if they are subsequently vindicated.

There are other downsides for the employer to suspension. Employees are normally entitled to receive their full pay and benefits during a period of suspension, so the employer is receiving no benefit for that expenditure. In Professor Jahangiri’s case her lawyer reportedly told the court that two weeks away from her role in which she performs difficult cardiac surgery was enough to cause her complex skills to lapse, which was why she never has more than two weeks off work. Professor Jahangiri told the court in a statement that a difficult operation on a seriously ill patient had to be cancelled on the day of her exclusion, and that other patients might have to be cancelled with patients not being told the reason why.

ACAS in its code of practice states that suspension should never be an automatic approach for employers dealing with disciplinary matters. Other options should be considered, including a temporary adjustment to the employee’s working arrangements such as moving them to work elsewhere; changing their hours; placing them on restricted duties; removing them to a different role. The code also emphasises that the suspension and the need for it should be kept confidential, where possible, and that the employer should discuss with the employee how they would like it to be explained to colleagues and /or customers.

Jean Sapeta
Consultant Lawyer

0203 137 4805
jean@eastwoodslaw.co.uk

 

13 Aug 18

Dr Bawa-Garba Successful in Appeal Against Erasure

August 13, 2018

In a judgment released today, the Court of Appeal has quashed the decision of Ouseley J that Dr Hadiza Bawa-Garba be struck off the medical register.  The Court of Appeal held that the Divisional Court was wrong to interfere with the decision of the original Medical Practitioners Tribunal (MPT) to suspend Dr Bawa-Garba, when it considered the case in February 2017.  That hearing had in turn followed the conclusion of Crown Court proceedings in 2015, at which Dr Bawa-Garba was found guilty of Gross Negligence Manslaughter and sentenced to two years’ imprisonment, suspended for two years.

The Court of Appeal concluded that it was wrong of Ouseley J to find that erasure was the only proper sanction available to the MPT, and that its original decision to suspend Dr Bawa-Garba failed to respect the decision of the jury when it convicted her, namely that the doctor’s own failings in the case had been “truly exceptionally bad”.  It instead concluded that the MPT had conducted an “evaluative judgment” of the case as a whole, reasonably taking into account factors such as the wider context of the case, Dr Bawa-Garba’s remediation since the events in question, and that “…she is a competent and useful doctor, who represents no material danger to the public, and can provide considerable useful service to society.”

To read the full judgment and a media statement issued by the Court, click here.

 

01 Aug 18

Gig economy: informal and flexible – but who has what rights when it all goes wrong?

August 1, 2018

In the recent judgment in Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29, the Supreme Court ruled that a plumber who paid tax as a self-employed contractor was a worker with rights to bring Employment Tribunal claims outside the contract. Jean Sapeta explains why and what it means for you.

Charlie Mullins built Pimlico Plumbers , a £70 million domestic maintenance business, on the back of a self-employed model. This summer PP lost a court battle in the Supreme Court over the status of its workers. PP said they were self-employed; the Supreme Court ruled they were workers. This is the first time the Supreme Court has considered workers’ rights in the growing gig economy. Why did PP lose?

The techy bits first – there are three possible relationships a person can have with providers of work (“employers”) -self-employed contractor; employee working under a contract of service; and worker – a middle category – neither of the above but a mix of both. Employees have most rights and are therefore the most expensive potentially but are under the greatest control. Workers have some but not as many rights as employees (e.g. paid annual leave; protection from unlawful deductions; protection from discrimination).

Self-employed contractors have no employment rights but retain a high level of discretion about how the work is performed. Some people like the freedom and flexibility of being self-employed, as well as the advantageous tax regime under schedule D.

Gary Smith who brought the case worked for PP for five years from 2005 to 2011. When he suffered a heart attack in 2010, he claimed he should be entitled to sick pay and asked to cut his week down to three days from five. He brought a claim for disability discrimination in the Employment Tribunal. He argued he was entitled to basic workers’ rights, which also include the national minimum wage and paid holiday.
Previously he had considered himself as self-employed. He had looked after his own tax on a trading basis and registered for VAT. He provided his own tools and equipment; he had to be insured and was responsible for the quality of his work. In his last year of work, he set off expenses of £82,454 against receipts of £130,753. Thus far, he looks like a self-employed contractor.

There were some odd features of the contract with PP. He had to undertake 40 hours work a week himself. There was a very limited right to send another plumber to do a job if he had quoted for it and no longer wanted to do it. He had to drive a PP branded van (with a tracker) which he had to “hire” from PP and wear a PP uniform which he had to keep clean and smart. His contract referred to “wages”, “gross misconduct” and dismissal”.
The Supreme Court decided that the dominant feature of the contract was that Mr Smith had to do the work himself. He could send another plumber, but that person had also to be under contract with PP. He therefore undertook to do the work personally.

Mr Smith also had to show PP was not his client or customer. Key to this was whether he was an integral part of PP , subordinate to it and acting according to its direction. The Supreme Court noted Mr Smith’s services were marketed through PP, he was under tight administrative conditions, and PP imposed fierce conditions as to how he was paid. He was also restricted from competing with PP once he had left. That was not a client / customer relationship.

For these reasons he was a worker not a self-employed contractor and can now continue with his claims against PP.

What’s the lesson? Each case is fact specific. If the contracts do not mirror the reality of the relationship on the ground, the courts will look behind the paperwork and examine the facts. If the relationship is not truly with a freelance or gig worker despite what the documentation says then individuals may unexpectedly have greater rights and more protection than a true self-employed contractor.

Jean Sapeta is a consultant employment lawyer with Eastwoods