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A Court of Appeal judge has expressed concern at the “almost automatic” response of many employers, when faced with allegations of maltreatment by employees such as nurses, to suspend the staff members concerned and forbid them to contact anyone.
Such action is often taken as soon as a complaint is made and quite irrespective of the likelihood of the complaint being established, Lord Justice Elias said.
The judge made the comments in a footnote to a ruling in Crawford & Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, a case involving the suspension and subsequent dismissal of two nurses.
The appellants, Mrs Crawford and Mr Preston, were employed by the Trust until their employments were terminated on 13 March 2009. They had been accused of alleged gross misconduct arising out of the way in which they handled a patient known as JE on 22 September 2008.
A complaint had been received about the handling of JE, an 87-year-old dementia sufferer, including that he had been tied to a chair with a sheet. This was something vehemently denied by the two nurses.
However, the incident led to Mrs Crawford and Mr Preston being suspended and the police notified of potential criminal offences.
A subsequent investigation led to disciplinary proceedings. The process took six months before the two nurses had their employment terminated. Neither had had any previous disciplinary issues.
Mrs Crawford and Mr Preston lodged a claim for unfair dismissal and were successful in the Employment Tribunal. The Trust succeeded in having this ruling overturned in the Employment Appeal Tribunal.
The appellants then sought to restore the original ET decision, and the Court of Appeal has now upheld their appeal in part. Lord Justice Elias said there was “obvious justification” for restraining JE, who on the day in question had been “agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention”.
The matter has been remitted to the same Tribunal for it to determine, in the light of the judgment, whether it would be appropriate to reduce the compensation in accordance with the Polkey principles.
On the issue of suspensions and notification of the police, Lord Justice Elias said in his footnote: “As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council [2000] IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is.
“I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging."
The Court of Appeal judge pointed out that even if the individuals are subsequently cleared of the charges, the suspicions are likely to linger, “not least I suspect because the suspension appears to add credence to them”.
Lord Justice Elias added that it would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously started from the assumption that the employee suspended in this way was guilty and looked for evidence to confirm it.
“It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him,” he said.
The judge clarified that he was not suggesting that the decision to suspend in this particular case was a knee jerk reaction.
“The evidence about it, such as we have, suggests that there was some consideration given to that issue,” he said. “I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.”
But the Court of Appeal judge went on to say that – whatever the justification for the suspension – he found it “little short of astonishing that it could ever have been thought appropriate to refer this matter to the police”.
He added that it almost defied belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step.
“I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit,” the judge said.
“Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet ‘criminal’ being applied to the employee's conduct. I do not think that requirement was satisfied here.”
Lord Justice Elias pointed out that no-one had suggested that the appellants were acting other than in the best interests of JE and the other patients.
“The restriction was not essentially different to the physical restraint which had been carried out in the day shift,” he found. “I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield [the Service Manager for Rehabilitation and Recovery] was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter.
“But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.”
Philip Hoult
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The National Audit Office has expressed concern that the public sector is paying more than it should for equity investment in PFI projects.
In a report, Equity investment in privately financed projects, the watchdog urged public authorities to make sure that they have clear evidence they are paying a fair price for private sector funding, and risk equity in particular.
The NAO report acknowledged the role equity investors had played in helping deliver infrastructure projects through PFI.
But the watchdog said investors should be rewarded for taking risks. Typically these are the costs of bidding, that their contractors fail to perform, or that other project costs the investors bear the risk for are higher than envisaged.
However, the NAO pointed out that investors can limit their risk by passing it on to contractors. It also highlighted how “the government is a very safe credit risk and many projects such as hospitals and schools are repeat projects”.
The report said that the Treasury and Whitehall departments had failed to gather systematic information to prove the pricing of equity is optimal.
The NAO pointed to three potential inefficiencies in the pricing of equity:
- the time and costs of bidding;
- minimum rates set by investors, “which sometimes do not reflect the actual risks the project will face”; and
- bank requirements.
Public authorities have not had the skills and information to challenge investors’ proposed returns, the NAO added.
In three projects reviewed by the watchdog, the NAO said around 1.5% to 2.2% of the annual service payments were “difficult to explain in terms of the main risks investors said they were bearing”.
The report also highlighted how investors selling shares in successful projects early had made high annual returns – typically between 15-30%. It recommended that the Treasury explore alternative investment models as part of its current review of PFI.
Amyas Morse said: "PFI projects benefit from secure cash flow from the public sector. Public sector authorities should have clear evidence they are paying a fair price for private sector funding, and risk equity in particular, considering the stable environment that PFI generally provides.
"The Chancellor plans to reform the PFI model. The Treasury review should give closer scrutiny to the returns investors are getting from PFI projects and take account of the areas we have identified where there is scope for savings."
The NAO report can be downloaded here.
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In the face of growing political opinion that human rights laws have "gone too far", the Supreme Court has given an important judgment which will extend the reach of the Human Rights Act with significant implications for public authorities who are responsible for vulnerable adults and children. Nigel Poole analyses the judgment.
In Rabone v Pennine Care NHS Trust [2012] UKSC 2, judgment was handed down by the Supreme Court on 8 February 2012 in a case which will have significant implications for public bodies in the way they protect the lives of vulnerable individuals for whom they have assumed responsibility.
A claim was brought by the parents of a 24-year-old woman who committed suicide shortly after having been wrongly allowed home from a psychiatric unit where she was being treated. The trust admitted negligence and paid compensation to the deceased's estate. The claimants were however not otherwise entitled to damages for their bereavement (since Melanie was over 18 years old) and so brought a claim under the Human Rights Act for damages, alleging that the trust, a public authority, had acted in contravention of article 2 of the European Convention on Human Rights (ECtHR).
Article 2 provides that everyone's right to life shall be protected by law. The ECtHR has interpreted article 2 as imposing three distinct duties on the state: a duty to refrain from taking life, a duty to investigate deaths for which the state might be responsible and a positive duty to protect life in certain circumstances. This third duty includes a duty to take operational steps to safeguard the life of an individual whose life is at risk from the criminal acts of another or from themselves. By the Human Rights Act that duty is imposed on public authorities within the United Kingdom.
Prior to this judgment, the courts had recognised certain limited categories of person to whom this operational duty might be owed, for example, prisoners, conscripts and psychiatric patients detained under the Mental Health Act. Melanie Rabone had not been detained - she was a so-called voluntary patient - but would have been detained had she not complied with her treatment or had she tried to abscond. The Supreme Court has held that the operational duty was owed to her even though she was not detained, but the judgment has implications beyond the particular facts of Melanie's case.
- In relation to the article 2 operational duty the ECtHR has in effect developed rules of tortious responsibility which run alongside and are not at all limited by the domestic common law rules of tort - "in the event of a breach of the operational duty, the range of persons entitled as victims to bring claims against the state, and the nature and scale ofcompensation or just satisfaction which they may receive will depend upon legal principles established by the ECtHR" - per Lord Mance
- To whom is the duty owed? Where a person is known to be, or ought to be known to be at a real and immediate risk of suicide or at risk of death at the hands of another, a public authority will owe the operational duty to protect them if the authority has assumed responsibility for their welfare and safety, and where the individual is particularly vulnerable and/or the risk is of an exceptional nature rather than one to which the individual might ordinarily be expected to be exposed. However the courts will interpret the duty so as not to impose an impossible or disproportionate burden on the public authority having regard to the operational choices it must make in terms of priorities and resources.
- The circumstances in which public authorities will be under an operational duty to take steps to protect the life of a person for whom they are responsible are still being tested and are likely, as in this decision, to continue to expand. Lord Dyson observed that "the jurisprudence of the operational duty is young. Its boundaries are still being explored". He considered that the ECtHR had been tending to expand the boundaries of the duty.
- The domestic courts will not be confined by, but will "take into account" European case law as they are required to by Parliament under the Human Rights Act: "If the domestic court is content to decide a Convention challenge against the public authority and believes such a conclusion to flow naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then it should take that further step... that is precisely the position in this very case." - per Lord Brown.
- Previously the Court of Appeal had held that the operational duty arose only in respect of those whom the public authority had detained. Now it is clear that detention is not a necessary condition for the duty to arise. So, the duty might arise in relation to psychiatric patients whether in hospital or in the community. It might arise in relation to vulnerable children and adults in care homes or otherwise under the care of a local authority. In Mitchell v Glasgow CC [2009] AC 874 the House of Lords contemplated, but on the facts rejected, a claim that a local authority owed an operational duty to protect the life of a tenant. In Watts v United Kingdom (2010) EHRR 66 the ECtHR appeared to accept that an operational duty might be owed to an elderly resident compelled to move from her existing care home. Following Rabone, it is possible that such duties might, in exceptional circumstances, be imposed on public authorities in relation to vulnerable tenants and care home residents if they are at a real and immediate risk of death.
- Such claims for damages under the Human Rights Act may be brought by close relatives of the deceased - they are entitled to do so by reason of being "victims" under the Convention and the Act. They will not necessarily lose their status as victims simply because compensation has been paid to the deceased's estate. They may even remain entitled to bring a claim for damages under the Human Rights Act even after they have been paid damages for their bereavement, if those damages do not afford "sufficient redress".
- In assessing the level of damages the Courts will be guided by awards given in Strasbourg, such awards for breach of article 2 ranging from EUR 5,000 to EUR 60,000. It will be noted that the upper end of the bracket comfortably exceeds the present level of the bereavement award under the Fatal Accidents Act 1976. Also, as the Rabone case illustrates, the range of persons entitled to claim damages is wider than those who are entitled to bereavement damages under the 1976 Act. Similar claims may be brought for contraventions of other articles of the Convention, including article 3.
- Enhanced, Middleton-style Inquests, which investigate thoroughly the circumstances of a death, are already required in any case where a public authority might have been in breach of the operational duty under article 2. Following Rabone that group of cases will expand: there will be more so-called "enhanced Article 2 Inquests".
It can be seen that this decision may lead the way for further claims where public authorities have failed to protect the lives of vulnerable individuals for whom they have assumed responsibility. What is, in effect, a new tort has been imposed on public authorities through the mechanism of the Human Rights Act - a development sure to further infuriate the Act's opponents but which will be welcomed by those who have lost loved ones in circumstances which the public authorities could and should have avoided.
Nigel Poole is a Barrister at Kings Chambers, Manchester and Leeds. He acted for Mr and Mrs Rabone in the case, and was instructed by Pannone LLP.
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The Local Government Association has warned councils and housing associations considering changing services or altering their housing allocation policies to ensure they comply with the Equality Act.
The LGA said: “Changes to housing allocation plans that have the net effect of negatively impacting on those with protected characteristics, such as disability, race or age, may well be against equality laws, and would be subject to a legal challenge.”
The Association added that – in addition to housing – other policies such as schooling and public health outcomes would need to be actively considered when delivering more “locally driven” services.
“It is clear that a ‘one-size-fits-all’ approach to services will no longer be enough to be compliant with the rules around promoting equality,” it said.
The warnings came as the Association published two sets of guidelines aimed at helping local authorities and other bodies meet their equalities obligations. These are:
- The Social Housing Equality Framework: these guidelines have been designed to help councils and housing associations ensure appropriate housing is provided to vulnerable people. They have been revised to take into account changes to equality legislation, as well as to the regulatory and inspection regimes for the social housing sector. The SHEF also reflects the greater freedom in relation to allocations.
- The Equality Framework for Local Government: this is intended to help councils “to continue to consider the impact that their policies on areas such as education have on the people who live and work in their area, and meet their wider requirements under equalities legislation”.
The LGA highlighted how councils can request a peer review and challenge to ensure that they meet the requirements of the SHEF guidance. “If a peer review team agrees that the required level has been met, then the council will be awarded a SHEF recognition award,” it said.
Cllr David Sparks, Vice Chairman of the LGA, said: “The equality frameworks can help ensure that councils not only provide high quality local services, but also ensure that local people are placed at the centre of decision making.
“Public bodies are rightfully bound by provisions within equalities legislation and local government wants to avoid legal challenges and protect the needs of vulnerable people. I urge councils to use the frameworks as a tool to promote equality and assist with compliance to the law.”
The LGA plans to launch a third equality framework, relating to fire and rescue, in March.
For more information, go to www.local.gov.uk or contact