Healthcare Features
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- Written by: Sean Clement
- Category: Healthcare Features
- Hits: 1973
Employees often move around different organisations in the public sector. But is this previous service relevant to their continuous period of employment? Tim Lang looks at a recent EAT ruling on this issue.
Public sector employers are often faced with the question of whether an employee’s previous service in the same sector counts towards the employee’s continuous period of employment. The Employment Appeal Tribunal (EAT) has held in the case of Winchester and Eastleigh Healthcare NHS Trust v Walker that an employee’s continuity of service was not preserved when she moved from one NHS organisation to another.
The Claimant, Mrs Walker, had been employed in the NHS since 1983, but only by the Respondent Trust, since 2006. She brought 25 claims in the employment tribunal, a few of which succeeded, including her claim for unfair dismissal.
In a claim for unfair dismissal, a tribunal must make a basic award to a successful claimant. The basic award is calculated according to a strict statutory formula based on salary, age, and length of service, as used in calculating statutory redundancy payments. This contrasts with the compensatory award which is designed to compensate the employee’s losses and in which the tribunal has a fair amount of discretion.
Mrs Walker gave evidence in the Tribunal that she had been continuously employed since 1983 and this was not challenged by the Respondent’s representative on cross examination, only in closing submissions before the tribunal. The tribunal used a commencement date of 1983 when calculating the basic award resulting in an award of £7,525.00 rather than the £1,050 which would have been the result if the commencement date of 2006 had been used.
The EAT held that there are only two ways in which the Claimant could benefit from previous service in the NHS prior to 2006. The first is by virtue of the Transfer of Undertakings (Protection of Employment) Regulations, which did not apply in the present circumstances. The second was to invoke section 218 of the Employment Rights Act 1996 which provides that continuity of service will be preserved when moving from one NHS organisation to another only if the employee is moving between two posts of ‘relevant employment’ (for example, if the employee is a management trainee, trainee doctor etc). The EAT found that the Claimant was ‘doomed to failure’ on this point. She was a nurse practitioner and had not moved from one type of relevant employment to another. She therefore fell at the first hurdle.
Of wider significance is the EAT’s consideration of the contractual documentation in this case. The Employee’s contract stated that the commencement date in her post was 2 October 2006 and the date for statutory continuous employment with the Trust was 2 October 2006. It also stated that previous service within the NHS would be taken into account for the purposes of certain benefits. The EAT found that the documents were "wholly understandable" and that "there is a world of difference between recognising certain benefits based on service to be continued with a new employer and injecting years into a statutory construct of continuous service". In other words, just because the contract stated that previous NHS service would be taken into account for purposes such as calculating maternity pay and sick pay, did not mean that the tribunal was entitled to find that Mrs Walker had continuous service with the Trust for the purposes of calculating the basic award. The EAT accordingly reduced the basic award to £1,050.00.
Whilst this may seem an obvious decision to those within the public sector who have to deal with the concepts of continuous or reckonable service on a regular basis, it is nevertheless an important reminder of the need for unequivocal contractual documents. If nothing else, a clear statement of the commencement date and when previous service within the same sector will be taken into account will help manage an employee’s expectations as regards continuous service, which will help avoid dispute at times when calculating certain payments and benefits such as maternity pay, sick pay, annual leave entitlements, pension entitlements, notice pay and redundancy payments. Of course due regard will have to be paid to overarching agreements such as Agenda for Change or the Green Book where they set out the areas in which previous service will be taken into account.
Tim Lang is Partner and Head of the Employment practice area at Weightmans. He can be contacted on 0121 200 8111 or at
- Details
- Written by: Sean Clement
- Category: Healthcare Features
- Hits: 1967
Where members of staff are assaulted and injured by a psychiatric patient, they are often likely to seek compensation from their employer. Andrew Parsons looks at a recent case of this type and sets out the steps authorities can take to avoid a successful claim.
Many working in the psychiatric field will be familiar with incidents of patient assaults on staff. Where injuries arise these are often subject to a claim for compensation against the employer. However, a recent case – Desai v North Essex Partnership NHS Foundation Trust (March 2011) Central London County Court – has demonstrated the sort of steps that a hospital authority needs to take to avoid liability.
Facts
The Claimant healthcare assistant was assaulted by a patient allegedly causing physical injuries and post traumatic stress disorder. The patient suffered from Huntington’s Chorea with symptoms including early onset dementia. He had been demonstrating increasing aggression and violence and had previously attempted to assault staff, leading to the need to use restraint.
On arrival at the hospital a risk assessment had been undertaken and a care plan had been put in place including arrangements for regular future assessments, the provision of three staff when he was agitated and 1:1 care, to be reviewed as necessary.
The hospital had a clinical risk management protocol to provide guidance for the approach required.
On the day of the incident the patient suddenly attacked the healthcare assistant, punching and head butting her. She alleged that the staffing levels at the time were inadequate, that she had been given inadequate training, and that the risk assessment had not been properly undertaken. She also alleged that the patient should have been transferred to an alternative unit.
The hospital was able to demonstrate that the healthcare assistant had attended a “break away” course for dealing with violent patients and that although the initial care plan had suggested a minimum of three staff where required when the patient became agitated, his behaviour had improved and this had been reassessed. More importantly, they were able to demonstrate that the patient’s needs were reviewed every morning and that staffing levels were increased where necessary. A formal risk assessment was undertaken each day.
The hospital also argued that the presence of a nurse at the time would not have prevented the assault because it was commenced without any warning and there would have been no opportunity to intervene to prevent it.
Court decision
The Judge held that the hospital had taken the appropriate reasonable steps. There was no evidence of a failure to implement the care plan and although the staffing levels had been reduced from the original 1:1 ratio, this had not been done in a way that was negligent. The level of observation was a matter for the ward manager to decide and he had properly applied his judgment to this issue as a result of the daily risk assessment. Nothing could have prevented the sudden attack. The claim was therefore unsuccessful.
Comment
Incidents of this sort are common. This case underlines the need to ensure that full and proper risk assessments and care plans are put in place, and confirms that if appropriate steps are taken, a successful claim may be avoided.
Although the actual requirements will depend on the facts of any particular case, clearly the essential important elements were:
- A full and detailed initial risk assessment.
- A detailed care plan based upon that risk assessment.
- The provision of sufficient and increased numbers of staff when there were indications that greater numbers were needed.
- A daily review of risk.
- Provision of appropriate training.
- Clear records to demonstrate compliance with the above, including documenting the daily risk assessment.
None of this will be new to those managing acute psychiatric units but nevertheless the case demonstrates the sort of steps that the courts will expect to have been undertaken if a claim is to be defended.
Andrew Parsons is a partner at RadcliffesLeBrasseur. He can be contacted at
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- Written by: Sean Clement
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- Hits: 1211
The Information Commissioner is to call for custodial sentences to be made available to the courts to stop the unlawful use of personal information.
Commenting before an appearance in front of the Justice Select Committee today, Christopher Graham said: “It beggars belief that – in an age where our personal information is being stored and accessed by more organisations than ever – the penalties for seriously abusing the system still do not include the possibility of a prison sentence, even in the most serious cases.
“Access to online records is now part and parcel of almost every transaction the citizen makes – with government agencies, local government, the NHS, DVLA, high street banks, insurers, social networks. This only makes the risks to privacy greater and the need for security greater still.”
The Information Commissioner will tell MPs that custodial sentences would be a more effective deterrent to the unlawful trade in, and access to, personal information.
Graham pointed to the extensive media coverage of offences under s. 55 of the Data Protection Act – so-called ‘blagging’.
Section 55 of the Data Protection Act makes it an offence to “knowingly or recklessly, without the consent of the data controller, obtain or disclose personal data.” The current penalty is a maximum fine of £5,000 in a Magistrates’ Court and an unlimited fine in a Crown Court.
The ICO said there had been an 18% rise in reported allegations of such offences in 2010/11 compared to 2008/09.
Graham said: “This offence is not just about private investigators finding out about celebrities’ hospital appointments. This crime has the potential to devastate ordinary people’s lives. The existing paltry fines are not enough to deter.”
The Information Commissioner urged the government to commence the legislation Parliament put in place by the Criminal Justice and Immigration Act 2008. Sections 77 (the custodial penalty) and 78 (providing an enhanced ‘reasonable belief’ defence for the special purposes) are yet to come into force.
“Blagging isn’t hacking, but the issue has got caught up in the controversy over press behaviour,” Graham warned.
“Unfounded concerns about press freedom were a distraction in 2008 and they should never have halted the introduction of stronger sanctions. They should not delay any further the commencement of the powers needed to combat this modern scourge.”
The ICO has brought a number of successful prosecutions over s. 55 offences in the recent past.
These include a personal injury claims company employee illegally obtaining NHS patients’ information over a four month period; police staff unlawfully accessing people’s personal details using the Police National Computer; and a private investigator trying to obtain a rape victim’s address from her GP and utility company.
The Information Commissioner argued that making available custodial sentences as the penalty for s. 55 offences had been “overwhelmingly supported” by respondents to a government consultation in 2006.
Philip Hoult
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- Written by: Sean Clement
- Category: Healthcare Features
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A medical student on a placement at a hospital in Manchester lost an unencrypted memory stick containing details of the treatment of 87 patients, the Information Commissioner’s Office has revealed.
An investigation by the watchdog concluded that the University Hospital of South Manchester NHS Foundation Trust had breached the Data Protection Act.
The hospital had assumed that the student had received training in data protection whilst at medical school. It therefore did not require them to undergo the induction training that it gives to its own staff.
The medical student had been working at the hospital’s Burns and Plastics Department and copied data onto the memory stick for research purposes. The stick was then lost by the student during a subsequent placement in December 2010.
The Trust has now given an undertaking to the ICO to take steps to ensure that personal information accessed by students is kept secure. All students will be made aware of the hospital’s data protection policies.
The ICO’s Acting Head of Enforcement, Sally Anne Poole, said: “This case highlights the need to ensure data protection training for healthcare providers is built in early on so that it becomes second nature.
“Medics handle some of the most sensitive personal information possible and it is vital that they understand the need to keep it secure at all times, especially when they are completing placements at several health organisations. NHS bodies have a duty to make sure their staff – both permanent and temporary – understand their responsibilities on day one in the job.”
In a separate case, the London Ambulance Service has also signed an undertaking after a personal laptop was stolen from a contractor’s home.
The laptop contained contact details and transport requirements relating to 2,664 patients who had previously used the Patient Transport Service, the ICO said.
The watchdog said the London Ambulance Service had now taken action to ensure that contractors were made aware of its existing policy on the use of personal data. This states that staff should not store patients’ information on their personal computers.