EAT Upholds Unfair Dismissal of Doctor Convicted of Drink Driving

A doctor who was employed by NHS Fife Health Board (“NHS”) has had a decision that he was unfairly dismissed upheld following a hearing before the Employment Appeal Tribunal in Edinburgh. Dr Stockman was convicted of driving while four times above the legal alcohol limit.  As a result, his registration with the General Medical Council (“GMC”) was subject to an interim suspension of 18 months.  He was signed off as unfit for work while he attended an alcohol treatment clinic.

NHS had a policy which stated that if an employee became ineligible for registration, that employee could no longer be employed in a post which required registration.  The policy expected the employer to deal with such a situation under their capability procedure.  The NHS capability procedure included loss of registration as one of the matters to be dealt with under that policy.  A new capability policy had been drafted some months before the dismissal, however, this policy had not yet been implemented.  Under the terms of the “new” policy, loss of registration was no longer a matter to be dealt with under the capability heading.

NHS decided that as GMC registration was necessary but not available, unless alternative employment could be arranged, dismissal would result (under the “old” capability procedure).  Despite leading evidence that he was likely to respond to the treatment which he was receiving and that the suspension of his registration was likely to be revoked, Dr Stockman’s employment was terminated just 6 weeks after the imposition of the GMC interim suspension.

Dr Stockman argued that NHS ought to have kept his job open while he received treatment for his alcohol issues.  NHS argued that it was unreasonable to expect them to pay for two consultants while Dr Stockman remained suspended.  The employment tribunal preferred the former argument and found the dismissal to be unfair.  The EAT agreed with the original decision.

Given the increasing number of employees who require to hold a professional registration to carry out their job, this decision is of potential significance.  The EAT agreed with the employment tribunal’s criticisms of the employer in applying their capability policy in such a manner as to make dismissal inevitable.    The NHS had acted unreasonably in dismissing the doctor without considering the full circumstances, including up to date information about his medical treatment and the likely duration of the GMC suspension.

Employers faced with a situation where the professional registration of one of their employees has been suspended, would do well to carry out a full investigation of the circumstances of the case, rather than focusing solely on the loss of registration.    

Jack Boyle 
Senior Solicitor – Employment Law

 

Restrictive Covenants – The Devil is in the Detail

In Prophet plc v Huggett, the Court of Appeal has overruled a finding of the High Court whereby the court inserted additional words to give meaning to an otherwise useless restrictive covenant.  The case concerned a sales manager at a computer software company.  His contract of employment contained a 12 month restriction against competition after he left employment.  The clause was worded so that the restriction would only operate to prevent Mr Huggett from working “in any area and in connection with any products in which he was involved whilst employed”.

The difficulty with the clause was that the products with which he was involved whilst employed were specific to Prophet.  The products were named ‘Pr3’.  On a literal interpretation of the clause it was useless because of course no competitor would be selling the Pr3 product as this was specific to Prophet.  The High Court judge formed the view that something had gone wrong with the drafting of the clause as it did not reflect what the parties had intended.

The judge required to ascertain what a reasonable person would have understood the parties to have meant by the chosen wording.  To that end, he inserted the words “or similar thereto” at the end of the clause.  The judge regarded this change as being the minimum required to achieve a commercially sensible meaning to the clause.

The Court of Appeal disagreed with this approach and overturned the injunction (the English equivalent of what is known as an interdict in Scotland) which prevented Mr Huggett from competing.  The Court of Appeal formed the view that there was no basis for the judge to recast the original bargain as he did.  The employer had received specialist advice on the clause and the draftsmen had chosen his words with “specific and deliberate care”.  The conclusion was that the employer had “made its clause 19 bed and must now lie upon it”.

This decision emphasises the need not only for precise drafting of restrictive covenants, but also for careful consideration of the matters which an employer is seeking to protect against before putting pen to paper.

Jack Boyle 
Senior Solicitor – Employment Law

No such thing as obesity discrimination….or is there?

Following the case of Walker v Sita Information Networking Computing Limited, in which the EAT held that a 21 stone employee did suffer from a qualifying disability, there has been a further development to the legal concept of disability discrimination and obesity.

In Walker, The Honourable Mr Justice Langstaff held that obesity was not a qualifying disability in its own right.  In Kaltoft v The Municipality of Billund, the Advocate General has this week issued an opinion on the issue.  The Advocate General was primarily concerned with the question of whether obesity on its own could qualify as a disability.

AG pointed out that disability covers a physical or mental condition which makes carrying out a particular job or participating in professional life objectively more difficult and demanding.  It was stated that obesity can be a disability where the limitations which the condition entails hinder full participation in professional life.

If the obesity has an impact on the individual’s ability to participate in work, the condition may be a disability.  AG concluded that only those with a BMI (body mass index) in excess of 40 would be likely to suffer such a hindrance so as to render them disabled.

The upshot remains consistent with Langstaff’s findings: obesity is not on its own a protected characteristic.

Jack Boyle
Senior Solicitor – Employment Law