Posts Tagged ‘Employment rights’

Sacked Polish consultant wins record payout

By Francesca Robinson - 20th December 2011 9:22 am

A record payout of nearly £4.5 million awarded to a senior doctor for workplace discrimination and unfair dismissal exposes the bullying culture that can still exist in the NHS, claims the BMA.

Dr Eva Michalak, 53, who worked as a consultant physician at Pontefract General Infirmary, was found by an industrial tribunal to have been a victim of a sustained campaign of race and sex discrimination

A hearing to decide compensation heard that Michalak had suffered from chronic post-traumatic stress disorder, was unable to accomplish everyday tasks and was suicidal as a result of her treatment by three senior managers, including the medical director, at the Mid Yorkshire NHS Trust.

The award, the highest compensation award in 45 years of discrimination cases, reflects Michalak’s severe psychological injury and her likely inability to ever be able to return to normal working. The majority of the award was for future loss of earnings (almost £942,000) and pension benefits (over £666,000). It also includes £30,000 for injury to feelings; £56,000 for psychiatric injury; £4,000 in exemplary damages; over £43,000 for the past cost of care for her and her young son, whom she became unable to look after; over £31,000 for the estimated cost of future care; and £50,000 for medical treatment.

Last year the Leeds employment tribunal heard that Michalak, who moved from Poland to practise in the UK in April 2002 had taken maternity leave shortly after her appointment.

While she was away, her colleagues were paid extra to cover additional responsibilities, despite a locum being hired to cover her role.

In reality the extra workload was low and when Michalak returned to work she asked to receive the same amount. She alleged sex discrimination when she was refused. This led to her becoming unpopular at work, the tribunal judgement said.

This resulted in a concerted campaign designed to bring her employment with the trust to an end. She began to receive complaints and criticism against her, and was accused of bullying junior doctors. It led to a “bogus” disciplinary procedure being adopted and an unjustified and lengthy suspension leading to her dismissal in 2008.

The trust’s medical director, Dr David Dawson, consultant physician Dr Collin White, and the human resources manager Dianne Nicholls were ordered along with the trust to pay Michalak £4,452,206.60. Michalak had originally claimed £9m.

The payout comes as Mid Yorkshire is battling to make savings of £31m and has warned it will need a £14m bailout to balance its books.

Dr Mark Porter, chairman of the BMA’s consultants committee, said: “Dr Michalak has been treated appalling by Mid Yorkshire NHS Trust and it is right that she has been compensated for the extreme suffering she has experienced.

“While the trust’s behaviour is not representative of all NHS employers it does reveal that a bullying culture exists in the health service. It is essential that hospital trusts have systems in place to counteract bullying and that staff feel able to speak out against harassment.”

Michalak’s husband Dr Julian DeHavilland, a research scientist who gave up work and studied employment law to represent his wife, said: “This payout is not a win. Any happiness and joy she had has diminished because she does not enjoy life in the way a happy person can. She is now very reclusive and the slightest thing can make her very upset.

“I think we are supposed to receive the full amount the tribunal awarded, but we will have to write a cheque out for £2m in tax.”

Trust chief executive Julia Squire said an independent review commissioned after the tribunal judgement found no evidence of widespread discrimination at the trust.

She said: “We have unreservedly apologised to Dr Michalak for mistakes of the past and I would like to take this opportunity to reiterate that apology in public.”

Paul Daniels, lawyer and partner at Russell Jones & Walker, said : “The award is so high due to a ‘perfect storm’ of factors including a serious case of sex and race discrimination, the claimant suffering a devastating psychiatric illness, preventing her from ever working again, and even requiring a personal carer, together with the loss of a very well paid medical job and pension at a relatively young age. The tribunal found there were a number of deliberate falsehoods and lies by the trust witnesses.”

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Employment law is a total and utter nightmare

By Tom Goodfellow - 18th May 2011 4:52 pm

In November 2010, I posted a blog concerning Charlie (not their real name) who worked for a small charity with which I am connected. The background is that after taking seven months of paid sick leave for a relatively trivial condition he returned for nine half days before going off again with ‘work-related stress’ alleging bullying and harassment. Charlie refused to attend any meetings to discuss the issues “on the advice of his GP” he claimed, but was able to provide a regular stream of monthly sick notes, although it was unclear as to the basis of these.

Employment law is a total and utter nightmare and the whole of the process is geared in favour of the employee. Now I appreciate that if I was an employee subject to unfair treatment I would be very grateful for this. But if you are a very small organisation with limited resources, with an employee who is determined to milk the system for all it is worth then it becomes quite a different story. Fortunately the charity is insured by Lloyds TSB which provides a mentoring system for small organisations, including comprehensive legal employment advice. Under their guidance the charity set about the formal process of trying to sort out Charlie.

It took months and months, and hours of time. Charlie, of course, put in a formal grievance complaint over the alleged bullying (coupled with a solicitor’s fishing letter asking for £8.5K compensation - binned!). Although the charges were groundless the trustees were obliged to go through the full formal grievance procedure, with Charlie in absentia since he refused to attend any meetings to state his case “because it was too upsetting for him”. The case was groundless, but inevitably Charlie appealed. Despite his ’stress’ he still managed to produce long detailed letters supporting his case. So many further hours were spent in answering this. The mentors insisted on full comprehensive documentation of the process.

Appeal dismissed and Charlie now about ten months into his sick leave (by this time on benefits) he was again invited to a meeting to discuss his future role in the organisation, which he refused. It must be noted that in a small company the long term absence of one individual will have a devastating effect on the other staff who have to carry the additional work load. We were not allowed to appoint in his place because that would be construed as constructive dismissal. The resulting work-related stress on the other staff was very considerable!

All the many letters, drafted by the mentors, were highly and irritatingly conciliatory. “We are so sorry to hear that you are still unwell (actually we are perfectly aware that there is nothing wrong with you) and felt unable to attend the meeting last week (although you have been spotted on many occasions shopping in town looking perfectly cheerful). However we have noted the comments made in your last letter in response to our recent proposals (we have trawled through your endless unsubstantiated accusations and excuses) and we would like to give you further opportunity to respond to our views on this (we have no option but to follow this charade to its conclusion)”. You get the drift.

To cut a long story short Charlie’s contract was finally terminated and sure enough about four weeks later we were informed that we were being taken to an industrial tribunal for unfair dismissal, Charlie being advised by ACAS.

The week before the hearing the mentors informed us that the legal team had reviewed our case and agreed it was watertight - we had been utterly fair, given him every opportunity to respond either in person or by letter and fulfilled all legal requirements. We were sure to win. Despite this they had taken the decision to offer him a financial settlement on the grounds that it would cost them two to three times as much to fight the case as to settle, since the employer is responsible for all the costs of the hearing.

So Charlie walked away with £3K - a rather paltry sum really; he would have earned much more had he chosen to work. It was covered by our insurers, so we did not have to pay him a penny of charity money which was a small triumph for us. But what a broken and corrupt system which rewards the feckless and penalises those who chose to work!

Of course you may claim that I have given only one side of the story; perhaps Charlie’s case was genuine? However as a medical manager and Union representative (HCSA) for many years I have seen both sides of the picture. Some cases are genuine and the employers deserve all they get. Many others are not and it is clear that the system is full of Charlies, like the MDT coordinator who went off for six months with ’stress’ one week after starting the job. Most companies will pay up just to get rid of such people.

It leaves a nasty taste in the mouth!

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Employment rights when applying for training jobs

By Mike Broad - 15th February 2010 11:46 am

Campaigning group Remedy recently forced the government, following a legal challenge, to delay their plans to exempt deaneries from employment agency legislation.

This is of significance to any doctor involved in the recruitment process, who would have been deprived of many employment rights by these proposals. The legislation governing the conduct of employment agencies was passed by Parliament in order to give protection to vulnerable workers.

A government consultation, in early 2009, stated that they ‘consider that [Deaneries] operate as employment agencies within the definition contained in the Act’ and that they wished to introduce an exemption. Their reasons for doing so were unclear. Remedy’s legal team postponed the introduction of the exemption, possibly indefinitely.

Following this, Remedy has prepared a briefing document which they suggest all applicants for training jobs read. Here’s a summary:

Do you know your rights?

Employment agency legislation may protect doctors in many areas - in particular around confidentiality, ’stick-or-twist’ and your right to information before accepting a post.

Employment agency legislation offers significant protection to work seekers. Here’s a simple guide to it. 

What is an employment agency?

Section 13 of the 1973 Employment Agencies Act defines them as being: the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding [persons] employment with employers or of supplying employers with [persons] for employment by them.

There are three important parts of the Act Remedy highlights:  

• Information given to work seekers.

• The twist and stick dilemma.

• Maintaining your confidentiality.

The legislation requires that sufficient information is given to work-seekers, including the place of work, the nature of the work and the duration of employment. This information needs to be provided to the work-seeker by the employment agency at the time that the offer is made, or in any event within three business days.

The second is the statutory requirement under Section 6 of the 2003 Act that prevents employment agencies from: subjecting or threatening to subject a relevant work-seeker to any detriment on the ground that -

(i) the relevant work-seeker has terminated or given notice to terminate any contract between the work-seeker and the agency or employment business; or

(ii) in the case of an employment business, the relevant work-seeker has taken up or proposes to take up employment with any other person; or

(iii) require the relevant work-seeker to notify the agency or the employment business, or any person with whom it is connected, of the identity of any future employer of the relevant work-seeker.

Remedy believes that this requirement affects the ability of an employment agency to compel applicants to withdraw their other applications when they receive an offer.

Your confidentiality is protected by Section 28 of the Act.

1. Neither an agency nor an employment business may disclose information relating to a work-seeker, without the prior consent of that work-seeker, except -

(a) for the purpose of providing work-finding services to that work-seeker;

(b) for the purposes of any legal proceedings (including arbitration); or

(c) in the case of a work-seeker who is a member of a professional body, to the professional body of which he is a member.

2. Without prejudice to the generality of paragraph 1, an agency shall not disclose information relating to a work-seeker to any current employer of that work-seeker without that work-seeker’s prior consent, which has not by the time of such disclosure been withdrawn, and shall not make the provision of any services to that work-seeker conditional upon such consent being given or not withdrawn.

Why don’t deaneries admit they are employment agencies?

Strangely, legislation requires that employment agencies mention their status in every advertisement. This is important so that work-seekers know what sort of organisation they are dealing with. Remedy will be writing to BERR shortly asking why this is not enforced.

Training programmes and contracts of employment

A contract of employment is a binding agreement between employer and employee, governed by employment law, which sets out the rights and duties of the two parties.

A training contract is a separate type of agreement between trainer and trainee. It is important that you check which type of contract - employment or training - you have signed.

If I withdraw from a job will the GMC be interested?

The threat to refer doctors to the GMC might appear to be covered under Section 6 of the 2003 Act (see above).

We recognise that the provision of safe levels of patient care is essential, that it would be irresponsible for doctors to pull out of a job that they had agreed to do at short notice, and that once you have accepted a firm offer of employment then you must honour that commitment. The GMC itself has issued guidance on this subject.

If you find yourself in this predicament then there are two important aspects to consider. Firstly there is the nature of the contract - employment or training - that you have signed. Paragraph 49 of Good Medical Practice refers solely to a ‘post you have formally accepted’.

Secondly you must consider what would be a reasonable period of notice to give if you were to withdraw. Three months is the usual notice period for Specialty Trainee jobs.

I have been offered a place on one training programme, but haven’t heard yet from the one I prefer. What should I do?

Despite the provisions of employment agency legislation, Remedy is getting reports from doctors who have been asked to sign agreements that run contrary to Section 6 of the 2003 Act.

If you intend to withdraw from all other training programmes that you have applied for then we would encourage you to let the deaneries know this. However you might still consider that their letter compelling you to do this contains a threat that breaches Section 6 of the Act, and you might wish to let BERR know. You can do this anonymously.

If you do not intend to withdraw from all other training programmes then you should let the deanery know this, and you should also state your reasons. You should never deliberately mislead them of your intentions or give false or incorrect information.

I think a deanery has breached the regulations. What should I do?

You can let BERR know this by writing to them directly.

For more visit the Remedy website.

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Juniors set to lose employment protection rights

By Francesca Robinson - 25th November 2009 6:54 am

Junior doctors will lose key labour protection rights from the New Year following a government decision to exempt postgraduate deaneries from employment agency legislation.

This means they will be deprived of basic employment rights enjoyed by other workers, claims the campaign group Remedy UK and the BMA, who have fiercely opposed the change.

Remedy’s head of policy, Dr Richard Marks, said the decision enables deaneries to continue using poor employment practices when employing doctors.

These include giving doctors only 48 hours to accept a position creating a dilemma for them if the job is not their first choice. The candidate must then either play it safe and accept a ’second choice’ placement, or reject the offer and gamble on receiving a preferable one. 

Deaneries are also frequently criticised for failing to supply job applicants with key information - such as details of salaries and expenses and where they will be required to work - until after the have started their placements.

Marks said: “There are some really outrageous things that deaneries do to junior docs which have become so established in medical culture that we just accept it en masse.”

Remedy warned that the government’s decision will open a loophole that will be able to be exploited by other organisations that recruit junior doctors, such as private locum agencies. He argued that they too will also see themselves as exempt from the legislation.

“We believe the status of deaneries in employment law terms is now very unclear,” said Marks. Remedy is currently investigating whether European employment legislation, which has a broader remit, could apply to deaneries.

The Department of Business Innovation and Skills (BIS) outlined the government’s position in its response to a review of the 2003 regulations governing the conduct of employment agencies. 

Deaneries were originally exempt from the Employment Agencies Act 1973 but following an NHS reorganisation in 2006 were inadvertently brought within its scope. BIS describes this as an “oversight”. 

The government argues that failure to exempt deaneries from employment agency legislation would “seriously hinder the recruitment and training arrangements for junior doctors with a subsequent impact on both costs and staffing for the NHS”. The changes are to come into force in early 2010.

To address the BMA’s concerns, BIS has proposed establishing a code of conduct to govern future recruitment and training arrangements for junior doctors.

But Datta says the JDC is concerned about how much teeth the code will have and whether it will be enforceable. 

“We will be pushing for it to have the same remit as the original legislation. This is a huge issue that is close to junior doctors’ hearts and uniquely only affects juniors.

“All we are asking for junior doctors to be treated the same way as any other workers,” she said.

The JDC is asking trainees to let them know which deaneries are not treating them fairly so that they can put pressure on them to improve standards.

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