Hallett v Derby Hospitals NHS Foundation Trust [2019]
InDronsfield v The University of Reading UKEAT/0255/18[2019] , Dr Dronsfield was a professor at the University of Reading who admitted to having a sexual relationship with a student. The university’s policies only allowed for dismissal on grounds of conduct for acts of an ‘immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment’.
A head of department and HR partner were appointed to investigate allegations against Dr Dronsfield. It was alleged that he had a sexual relationship with a student without reporting it, abused a position of power to influence a student into the relationship, breached his duties of care towards his students, and held late-night and alcohol-fuelled meetings with female students.
The final investigation report, screened by the university’s in-house solicitor, omitted comments that could have acted in Dr Dronsfield’s favour on the solicitor’s advice. These included evaluative opinions, offered by those investigating, that Dr Dronsfield had not acted in such an immoral and scandalous manner, despite the evidence supporting the allegations.
After being dismissed for gross misconduct, Dr Dronsfield appealed the decision. The external barrister who heard the appeal had seen previous drafts of the investigation report (without amendments or omissions) which had been made available following Dr Dronsfield’s freedom of information request. His appeal was dismissed nonetheless.
Dr Dronsfield then bought a claim of unfair dismissal and, in the first instance, the tribunal found that he had been fairly dismissed. On appeal, the EAT remitted the case to a fresh tribunal to consider whether the omitted comments were left out because those investigating had changed their mind, or for some other reason, and whether the university had carried out a fair process in the light of this. The tribunal held that the dismissal had been fair, as the university was within its rights to seek legal opinion on the report and that, despite the omissions, no false or incomplete position was set out in the report. Dr Dronsfield appealed again on the grounds that the tribunal had not adequately considered the issue of omitted findings or provided reasons as to why his argument was rejected.
The EAT also dismissed the appeal and found that the investigation report had been amended on the solicitor’s advice that evaluative conclusions of those investigating should be left to the disciplinary panel that was subsequently appointed. Crucially, there was no suggestion that any evidential material was withheld from the investigation report and therefore not put before the disciplinary panel. The EAT found that the tribunal had considered this, including noting that the barrister hearing the internal appeal had reviewed the drafts and still rejected the submissions that reports were amended to make Dr Dronsfield’s dismissal more likely.
The case is a useful reminder that employers should ask those investigating to limit their findings to factual evidence, and that any evaluative comments and opinions should be left to the disciplinary panel making the decision.
R (on the application of Delve and another) v Secretary of State for Work and Pensions (2019) EWHC 2552 (Admin)
In this High Court case, the claimants sought judicial review of the Government’s policy of raising and equalising the state pension age (SPA) between men and women, and of the failure to inform them of the changes. The legislation increased SPA from 60 to 65, and subsequently 66 and 68 for some women. SPA was gradually increased between 2010 and 2018.
The High Court refused the application and, in turn, dismissed the claims of age discrimination, sex discrimination and inadequacy of notice provisions.
From an age discrimination perspective, the Court clarified that the legislation did not fall within the scope of EU Law and its general principle of non-discrimination. It then considered whether the scheme was discriminatory under article 14 ECHR. It confirmed that a state can introduce new legislative schemes from a given date and that, in the context of state pension, this could effect changes from a given date based on age. Because it was permissible to change the law at a single point in time, then logically it followed that this should also apply to a series of changes at different points in time. On this analysis, the situation of younger pensioners was not comparable to that of older pensioners, as a person cannot claim equal treatment ‘in time’. The Court pointed out that the changes were not without reasonable foundation in the interests of balancing state pension age with the size of the state pension.
The Court then considered sex discrimination and found that the legislation affected women only because they had previously enjoyed the advantage now being removed. It therefore did not treat women less favourably but, rather, corrected a discrimination against men. As for indirect discrimination, it found that the legislation did not apply indiscriminately because it applied only to women born after 1 April 1950, and such differential in state pension age might have mitigated pre-existing disadvantages affecting women of the claimants’ age who may not have had the same work expectations or opportunities as men of the same age.
Finally, the Court considered the adequacy of notice provisions and found that Parliament had not given a clear and unambiguous undertaking that those affected would be given individual notice of the changes. Whilst Parliament could have included such an obligation, no breach could commit or empower the Court to suspend the operation of that legislation. Extensive consultation had preceded the decision, and steps taken to inform people were not inadequate or unreasonable, although not as exhaustive as they might have been.
