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Coffin Mew's Employment News

“If you travel as much as we do, you appreciate how much more comfortable aircraft have become. Unless you travel in something called economy class, which sounds ghastly.”

Prince Philip

“My wife was afraid of the dark... then she saw me naked and now she's afraid of the light.”

Rodney Dangerfield

Welcome

According to news reports, the current economic climate has not stemmed the growth of entrepreneurs and start up businesses. One rather novel example of this, which (unsurprisingly) caught my eye, is a new business that has been reported to offer a particularly extraordinary ‘unique selling point’, in that it will provide naked workers to help clean your home.

Apparently, the entrepreneur responsible for setting up the business isn’t just limiting his services to the cleaning sector – he can provide nude or topless builders, plumbers, IT experts and…. wait for it….. legal advisers.

Now, I don’t mind a bit of honest competition in the legal world, but even I would draw the line at the legal equivalent of skinny dipping!!

Before that image causes you too much psychological distress, let’s have a look at my Legal Bits…. Errr.… I mean Bit.

The Legal Bit

You will no doubt recall Dorlee’s report on the case of Crawford and another v Suffolk Mental Health Partnership NHS Trust in last week’s Monthly Review, where the Court of Appeal decided that the employer’s failures in a disciplinary process led to the unfair dismissal of two nurses accused of tying a patient to a chair.

The Crawford case is extremely important; not just because it underlines the importance of a proper investigative and disciplinary process when an employee’s profession is at stake, but because the Court of Appeal also went on to give some extremely important and potentially challenging guidance on the issues that an employer should consider before suspending an employee.

By way of a brief reminder of the facts, Mrs Crawford and Mr Preston were nurses. They worked with some challenging patients with depression and dementia at the Trust. The two employees faced allegations that they were seen by a fellow worker tying a patient to a chair with a bed sheet. The employees were suspended for alleged assault after an initial investigation meeting for further investigations to be carried out. The assault was referred to the Police, who ultimately decided not to take any action against the nurses. The nurses were eventually dismissed for assault, professional misconduct and negligence a number of months later following an internal disciplinary process. The nurses challenged their dismissals and ultimately, the Court of Appeal confirmed that they had been unfairly dismissed for a number of procedural and substantive reasons. For more information regarding the decision, please read Dorlee’s article by clicking here.

The issue of the Trust’s decision to suspend the nurses was discussed and criticised by the Court of Appeal, even though this did not, in itself, form part of the unfair dismissal decision.

The Court of Appeal underlined the concern that suspension "appears to be the almost automatic response of many employers to allegations of this kind". The Court reiterated the principles from an earlier case of Gogay v Hertfordshire County Council that warned against suspensions becoming a "knee jerk reaction". The Court of Appeal Judge went on to say:

“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. Even if they 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.”

The Judge went on to criticise the Trust and 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.”

Some employers may find the comments by the Court of Appeal somewhat concerning, bearing in mind that, at the time of the Trust’s decision, two nurses were suspected of potential assault against a patient. However, the Court of Appeal seems to have criticised the Trust for suspending them on the basis that they had not taken their unblemished record into account and because there was no real risk that someone else would be assaulted.

Clearly, the Crawford case indicates that an inappropriate suspension will amount to a breach of the duty of trust and confidence towards an employee if it was a “knee jerk” reaction. As such, the moral of the story is that when an employee is suspected of committing a serious act of misconduct, employers must now pay even more attention to the decision making process surrounding their potential suspension in order to minimise the chance of a constructive dismissal claim.

As an aside.....

Finally, my (rather sad) hobby of finding quirky employment-related stories has meant that my attention was drawn to a newspaper report that Virgin Atlantic has engaged a 'whispering coach' for its employees.

“What’s a ‘whispering coach’?” I hear you whisper.

Well, cabin crew are apparently being taught how to whisper to Upper Class passengers (in the 20 to 30 decibel region) so that it will help them relax and not disturb the other sleeping passengers in the Upper Class areas.

When I said earlier that ‘my attention was drawn’ to the newspaper report, what actually happened was that the (now infamous) current Mrs Tibble shoved the report under my nose at the breakfast table this morning and said that I could benefit from a whispering coach. To be fair – she has a point.

Until next week.

Darren