The Identical Decisions Made by UK Courts on Labour Law - Essay Example

Gill Mezey v. St.George’s Mental Health NHS Trust and South West London 1Case Law Analysis. Introduction This research paper analyses about the decision held in Mezey v. South West London and St George’s Mental Health NHS Trust in the back ground of UK’s employment law and also analyses the identical decisions made by UK courts on procedure to be followed while suspending an employee under UK employment laws and consequences thereof if stipulated procedures followed for an employer in detail. Analysis Gill Mezey was employed as a consultant psychiatrist in St.George’s Mental Health NHS Trust at South West London. She discharged John Barrett, a mental patient even without screening or seeing him before an assessment is made. John Barrett who was a suspicious schizophrenic patient absconded immediately after his release by Gill Mezey. John Barrett reportedly killed one Dennis Finnegan aged about 50 when he was cycling through Richmond Park in South West London in the day after Barrett’s release. A domestic inquiry was held by the Trust and two reports had reprimanded Mezey’s clinical management of John Barrett. .Hospital authorities suspended Gill Mezey with full pay for her negligence from all her duties. On manslaughter charges, John Barrett was sentenced to life. Hospital authorities relied on their hospital’s disciplinary procedure and policy which, it pleaded that equivalent to a contractual authority. In the mean time, Mezey had at her own free will absolved from her clinical duties following the episode as she felt that it would facilitate her from the chance of suspension. Mezey voluntarily undertook non-clinical duties like research and teaching mainly to avoid suspension. Both St George’s Mental Health NHS Trust and South West London administration were sued by Dr. Gill Mezey for suspending her on full pay. She claimed that she incurred pecuniary losses due to her illegal suspension as she could not practice her profession. The specialty of Gill Mezey case is that common law prolongs to expand and acclimatise conventional remedies to address issues on employment –specific contracts. Immediately after the incident, the trust perused a series of in-house probes which culminated in disciplinary action initiated against Mezey. Earlier, she was suspended on full pay from teaching and clinical duties pending the result of the punitive hearings. Aggrieved by her suspension, Mezey brought before UK High Court a breach of contract proceedings claiming that her suspension was against the Trust’s policy which stated that no employee could be suspended until there was enough concrete proof warranting the suspension. She also preyed that there was no incorporation of disciplinary proceedings in her contract of employment and in any case, her suspension was not concerned with cases of supposed incapacity or incompetence. As a part and parcel of this proceeding, Mezey successfully got an injunction forbidding the Trust from enforcing the suspension. Due to grant of injunction, Trust permitted her to resume to non-clinical work while anticipating the final award of the disciplinary proceeding. Aggrieved by the granting of injunction by the High Court, Trust applied a leave to appeal to the Court of Appeal. It was argued by the Trust that it was erroneous in principle for a court to hold back a suspension since it was a “neutral act safeguarding the employment bond”. The Trust also preyed that there was a collapse of mutual confidence and trust in this specific case which could be redressed by sanctioning an injunction. The Court of Appeal refused the application made by Trust stating that the action of suspending an employee shall not fall under a ‘neutral act’ that protects the relationships in employment but rather assumes a noteworthy effect on the employment arrangement , transforming the state of affairs from “work” to “no work” and has significance for an employee’s standing or reputation. Thus, act of suspension has transformed an employee’s position and certainly cast doubt on their capability. This could well be applicable to a well competent expert whose job was also a profession. The Trust had misconstrued its legal authority in levying suspension to Mezey. In case of non-clinical duties offered by Mezey did not corroborate that association of confidence and mutual trust was so injured that no injunction could have been granted. The court found no reason in law why it could not grant a stay for a suspension in the same manner in the case of a dismissal as each could be termed as a breach of contract and of not being completely reimbursable through compensation in damages. Significantly, the court had not taken into account the breach of faith and confidence between the Trust and Mezey to be a feature barring the court from granting an injunction and permitting Ms Mezey to resume the work. The judge’s conclusion to grant the injunction was footed on his assessment of terms of employment contract of Mezey and was duly reasoned. The judge was of the opinion that in worst case, there was a provision in the employment contract of Mezey about the suspension. Thus, suspension could not be ordered by the Trust in the circumstances of this case and hence, the suspension was considered to be an infringement of contract. On Mezey side, it was argued that the Trust was failed in its contractual duty to pursue an approach no less than that was stated in a Department of Health policy document namely 2003/12, that an employee can be suspended only where it is felt necessary and that too for the minimum shortest time and partial suspension should always given preference. Thus, the Trust has not come with clean hand justifying the suspension or made available enough witness statements. It could be emphasised that proper attention had not been given to the significance of restricting the suspension to what was exactly needed by permitting the non-clinical duties to prolong. The Trust had failed to produce any direct evidence to demonstrate that it would suffer loss by continuing to allow Mezey to practice her non-clinical activities pending the result of the disciplinary proceedings. Perhaps, she had been doing the same without any complaint or incident during the past two years since the affair during which time the Trust had not felt it essential to suspend Mezey. On the other side, there was distinctive evidence of injustice to Mezey in depriving her from her employment. Conventionally , the courts have been reluctant to meddle in the demeanour of employment contracts and pass instructions for specific performance persuading to continue the employment contract that have been restricted to unjust dismissal cases where the association of faith and confidence between employees and employer has not been irredeemably injured. Moreover ,this case highlights , the courts may be more interested in meddling in employment related litigations to stop an employer from behaving in breach of contract in scenario other than dismissal and to prolong the relationship in employment until a difference of opinion has been sorted out. Mezey case highlights the following lessons: Employers should exercise utmost care before suspending any employee under UK employment laws. The terms of appointment or contract of service or policy of the employer should be given utmost significance pending the results of disciplinary actions, especially where suspension may have rampant effect on the employee’s professional integrity and reputation. Where a common legal remedy is sought by an employee like breach of contract, the ability of an employer to suspend an employee pending the result of disciplinary actions may be result in granting an injunction by a court by barring such suspension. (www.bailiii.org 2007) Mezey case became now precedent The Court of Appeal has granted an injunction in Watson V.Durham University 2case based on the decision made in Mezey’s case. In this case, Court awarded an injunction to put a pull stop on suspension order served on a senior employee. A suspension order was served by Durham University in December 2007 on Professor Watson. Watson moved the Court of Appeal and it accorded an injunction order against his suspension on 24 October 2008. Though in this case, an injunction was granted against Watson suspension on the basis of the decision made in Mezey’s case, but this case has its own peculiarity namely a development of the law. The court observed that for suspending an employee, an employer must demonstrate some reasonable, valid grounds. (Julie Davies 2008) On What Grounds an Employee can be suspended? In case of serious offences like fraud, suspending the concerned employee will be the most desired action provided if the contractual terms authorising such suspension. In case of grave offences like fraud or other criminal offences like use of drugs in the workplace, if the employer fails to suspend an employee it would be arduous task latter to demonstrate that the employee conduct was adequately grave that warrants a dismissal for gross misconduct. The Employment contract should state the rights and responsibilities of suspended employee. In the ordinary sense, a suspended employee will normally have to be paid his salary and will enjoy all statutory employment rights that any other employee will enjoy. (Keenan 2007). An employer should have an established disciplinary procedures in force which assists employees to attain and maintain standards of attendance , conduct and job execution and to make sure that any if any failure to meet the employer’s standard may warrant with suspension or termination in case of grave mistakes. If an employee is to be suspended for any misbehaviour or misconduct, an employer should also to observe standards or fair procedures. In case of any misconduct, no action should be perused by the employer before a proper investigation is carried out. While investigation is under process, an employer may suspend a worker in appropriate cases. It is to be noted that under the period of suspension , the contract of employment continues to prolong with all privileges and rights which the employee has under the contract of employment which includes his entitled for salary or wages. Disciplinary hearings: When there is an act of misconduct on the part of the employee, the employer should continue the disciplinary hearings. A written charge against employee should be given by employer so that the employee must prepare himself to present his case during the disciplinary hearings. During the employment hearings, an opportunity should be given to employee to present his case and his colleagues should be allowed to accompany him during the disciplinary hearings. Misconduct by the employees can be classified into two categories; Grave misconducts which entails immediate dismissal without payment or notice. Minor offences for which a written warning may be served with a stipulation that if any repeated activity will entail serious punishment. For instances , frequent late attendance , absence without notice , regular absent from work, negligible damage to employer’s property , bad conduct like use of abusive languages and smoking in a regulated areas. It is highly recommended that employer’s should publish or advertise their of list non-exclusive examples in their disciplinary procedures. For negligible misconduct, the following may be served on employees by an employer; a) an oral notification b) a first notification under writing c) Written final notification d) Suspension or dismissal. Appeal: An employee should be given an opportunity to appeal against any disciplinary decision initiated against them. The appeal should be chaired by persons who are not related to the incident and it should be fair and proper. In the appeal also, an employee along with his colleagues can attend and present and defend his case. Various Scenarios Under Which an Employee can suspend an Employee. An employee can be suspended by an employer from work under UK employment law. These include suspension under maternity grounds, suspension for medical reasons and lay-offs. Lay-Offs: When business is incurring losses concurrently or when there is an economic recession, then management may suspend employees by laying-off them subject to conditions in the employment contract. A reasonable compensation has to be paid by employer to employees according to limits prescribed in the law as redundancy allowance during the period of lay-off. For complete period during the period of lay-off, majority of the employees are entitled to receive guarantee payment from their employees. However, this is limited to a maximum of 5 days payment in any 90 days period. However, guaranteed payment is to be paid to only permanent employees and not temporary or hourly –paid employees. Medical suspension: An employee can be medically suspended if they are being employed in dangerous or hazardous industry. Suppose, if an employee is having every chance to suffer from radiation, then he may be suspended by the employer on possible damage to their health ground. Permanent employees who are suspended on health grounds are entitled to receive compensation up to six months and two weeks. If an employee is already a disabled or sick person, they are not eligible to receive guarantee payment. Maternity Suspension: Safety of the expectant or new mothers or their babies is to be guaranteed by the employer and when there is risk of exposure to hazardous working atmosphere, such pregnant mothers should be given paid leave or off and this is known as “maternity suspension.’” In lieu of maternity compensation, the expectant mothers may be given alternatives works which do not involve risks to health or exposure to perils. Normal pay should be paid to women employees who are given medical suspension during their pregnancy. An aggrieved employee may apply to employment tribunal within three months of the day they are entitled for guarantee payment. (O’ Dempsey et al2001). Garden Leave: An employment contract may provide ‘Garden Leave” procedure which permits an employer to suspend an employee with paid leave. As the name denotes, an employee during ‘Garden Leave’ is not permitted to take alternate employment and to remain idle. This is mainly to protect a business interest like trade secrets or manufacturing formulas. (Nairns Janice 2007). Radecki v. Kirkless Metropolitan Borough Council case law analysis In Radecki v Kirkless Metropolitan Borough Council (KMBC), on lack of skill ground, a teacher was suspended with full pay. In the process of arriving at a compromise agreement, the disciplinary proceedings were postponed. An unsigned draft compromise agreement stated that Radecki’s employment came to an end on 31st October. Though the agreement was not finalised, KMBC removed Radecki from its payroll on 31st October. On 22nd February, Radecki communicated to KMBF that he was unhappy over his ouster. KMBC asserted through its letter dated 5th March that his employment came to an end on 31st October. The Tribunal was of the view that effective date of termination was 31 October and hence the claim was not made within the time. However, Employment Appellate Tribunal (EAT) overturned the decision of Tribunal on the ground that the draft unsigned compromise agreement could not be acted upon. Further, KMBC failed to hold disciplinary proceedings. Further, its communication dated 5th March could be considered as reply to Radecki communication dated 31st October and hence, it could be concluded that the claim by Radecki was made in time and hence, his termination was illegal. What is vital for suspending an employee? In view of Mezey’s case and other cases like Radecki Watson and O’Neil cases, before suspending or dismissing an employee, an employer should focus his attention on the following: Intimation about the inquiry A fair inquiry should be conducted Appeal against the finding in the enquiry should be allowed. If an employer fails to adhere the proper steps before suspending an employee, then such suspension will fall under unfair practices and offer an opportunity for affected employee to claim for compensation. However , in certain grave misconduct like possessing drugs or using drugs while in employment or embezzlement of cash , an employee may be suspended or dismissed immediately even without investigations. In O’Neil case, he was suspended for insubordination without disciplinary meeting or earlier warning. The tribunal observed that dismissal was fair. In an appeal, the Employment Appeal Tribunal held that dismissal was held inappropriate as no formal dismissal procedure was adhered. The case was reverted back for rehearing to the Tribunal. O’Neil v. Wooldridge Ecotech Limited3 case stipulates that even in the litigation regarding gross misconduct, employer is under obligation to follow fair dismissal procedure like placing their case at a disciplinary inquiry thereby offering an opportunity to employee to present his case at the disciplinary proceedings well before taking a decision to initiate an action or not against erred employee. Thus, in cases of gross misconduct, it is wise to suspend an employee pending an investigation rather than instantly dismissing him from service. Conclusion In Mezey case, the High Court of U.K in 2007 held that suspending an employee cannot be considered as a neutral act and cannot be extended to non-clinical duties. High Court issued injunction which compelled the employer to permit Mezey to resume to work during the process of a disciplinary inquiry. According to High Court, a suspension should be exercised in a style no less than constructive to doctors or physicians than required. Thus, Trust failed to follow this approach by suspending Dr Mezey from whole duties including administrative, managerial and academic and not confined to her clinical duties alone. On the basis of the above findings, High Court granted an injunction which barred the Trust from suspending Mezey from her non-clinical employment functions. Thus, while suspending an employee, a Trust under NHS should be very diligent as it would be expensive for the Trust and may be distrusting for the medical practitioner like Mezey. Thus, exclusion or suspension may be felt essential to safeguard the patient or required for the conduct of efficient inquiry, but their practice or use should be regulated by a crystal clear policy and should be completed at the earliest. List of References Julie Davies(2008)Suspension must be used reasonably . [Online] available from [ 4January 2009] Keenan Denis and Riches Sarah (2007) Business Law. UK edition. Essex: Pearson Education Limited Nairns Janice (2007) Employment Law for Business Students: UK edition. Essex: Pearson Education Limited O’ Dempsey et al (2001). Employment Law and the Human Rights Act, 1998. Bristol: Jordon Publishing Limited www.bailiii.org (2007) Mezey v. South West London and St.George’s Mental Health NHS Trust [online] < http://www.bailii.org/ew/cases/EWCA/Civ/2007/106.html>[ 4January 2009] Read More