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Psychiatrists win unfair dismissal case after being made to do out of hours work

BMJ 2013; 346 doi: http://dx.doi.org/10.1136/bmj.f2234 (Published 09 April 2013) Cite this as: BMJ 2013;346:f2234
  1. Clare Dyer
  1. 1BMJ

Three consultant child psychiatrists with child care responsibilities have won an unfair dismissal case against the NHS trust that took over their services from a previous provider and tried to make them do out of hours on-call work.

Victoria Laakkonen, Sarah Taylor, and Mary Cole won their case in the Southampton employment tribunal in July 2012 and have now had their victory upheld by the employment appeal tribunal, whose judgments set precedents for other cases.

The three women had been working part time for Salisbury Health Care NHS Trust under contracts with an express term that they were not required to do out of hours work. Oxford Health NHS Foundation Trust successfully tendered to provide child and adolescent psychiatric services for three areas, including Salisbury, and became the psychiatrists’ employers from April 2010.

The contract awarded to the Oxford trust required it to provide emergency and crisis care 24 hours a day, 365 days a year, and Oxford wanted all 11 consultants in the bigger area to undertake on-call duties. The women would not agree to the change in their conditions.

After carrying out a consultation, which the Southampton tribunal found was “insincere, not genuine and pre-determined,” the Oxford trust served the women with three months’ notice of dismissal, coupled with an offer of re-engagement on the same terms as before, except that it included a requirement to do out of hours work.

The women accepted the offer under protest and continued to work for the Oxford trust but launched a claim for unfair dismissal, supported by the BMA.

Two of them also claimed indirect sex discrimination, arguing that the requirement to provide out of hours cover put women at a disadvantage compared with men.

The psychiatrists’ change of employer from the Salisbury trust to the Oxford trust was covered by TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006), which gives employees the legal right to transfer to the new employer on their existing terms and conditions of employment.

The Oxford trust argued that some exceptions allowed by the regulations applied, but the Southampton tribunal held that they did not, and the appeal tribunal agreed that the dismissals were unfair.

In the case of Laakkonen and Taylor, who claimed that the insistence on out of hours work amounted to sex discrimination, Oxford argued that it was a proportionate means of meeting a legitimate aim: to spread year round 24/7 cover equally among all the consultants.

But the Southampton tribunal held that the requirement for equal participation of all the consultants was not proportionate and constituted indirect sex discrimination, since it had a disproportionate impact on women. The appeal tribunal upheld that finding.

The Southampton tribunal made an order for the psychiatrists to be reinstated on the pre-transfer terms, including the exemption from out of hours duties. It also awarded compensation for unfair dismissal, but this was set aside by the appeal tribunal on the basis that employment law does not allow both compensation and reinstatement.

Notes

Cite this as: BMJ 2013;346:f2234