Disputes where an employee claims injury to their feelings by their employer can lead to costly awards and managers need to be aware of the law and procedures

Of all the claims NHS staff can make against their employers, those concerning injury to feelings are perhaps the hardest to quantify. Yet recent cases have shown that courts have quantified such an abstract concept in the damages they award to those employees, and that it certainly is not a small amount.

With the NHS facing a sharp decline in government funding in the coming years, such cases act as a stark reminder of the potential injury to feelings claims have to further deplete NHS budgets.

Senior managers in trusts need to be aware of how the law views such grievances, what kind of damages the courts are willing to make them pay if they are found to have caused injury to an employee’s feelings and what steps and processes they can take to protect themselves against such claims if they are brought against them unfairly.

Education/training issues

Employment tribunals’ findings of internal grievance are often found to be based on managers’ fundamental misunderstanding of the law, including that in relation to discrimination, victimisation, redundancy and whistleblowing.

NHS organisations need to ensure managers tasked with dealing with these issues are appropriately informed in the law and that competent advice is available to them.

A commitment to people management

Many will readily accept that managing people is one of the hardest aspects of a senior role.

Health service staff are often promoted to deal with management responsibilities for which they have not received a great deal of training, and which take them away from the practical elements of the profession in which they have been trained.

At times these responsibilities are burdensome, time consuming and potentially frustrating.

It is important that managers who have been recruited into these promoted positions accept the responsibilities that go with these roles.

Grievances must be carefully considered and decisions justified and supported by evidence and the relevant legislation, however tiresome the paperwork.

Decisions relating to the recruitment and promotion of staff need to be explained and justified similarly.

Managers involved in these processes need to be clear about (and willing to explain) the reasons for their decisions in internal appeal processes and potentially at tribunal.

Reverse burden of proof in discrimination claims

It is essential for trusts to understand the approach that tribunals will necessarily adopt in discrimination claims and are ready to deal with it. The tribunal in Linda Sturdy’s case (see case study) made a number of findings of fact and concluded that inferences could be drawn from these facts (in the absence of explanation from the respondent trust), that Ms Sturdy had been discriminated against on grounds of her age.

At this stage in all tribunal proceedings, the burden of proof passes from a claimant to a respondent and it becomes the respondent’s responsibility to show that age was not the reason for the less favourable treatment.

If a respondent cannot provide an explanation for its treatment of the claimant, then the tribunal will more often than not find in favour of the claimant.

Careful management of disputes

Disputes are inevitable in complex organisations such as NHS trusts. It is important to manage disputes reasonably, having regard to the rights of employees, and the need to protect the organisation’s position and support its managers.

Careful consideration should be given to a strategy to deal with disputes. Is a resolution reasonably feasible? If a grievance is raised, how might a grievance process best resolve matters? If a grievance process does not achieve resolution, might workplace mediation assist?

Genuine attempts by an employer to resolve disputes at an early stage will often improve the employer’s position in the eyes of a tribunal.

Making efforts to resolve disputes quickly will help to justify the costs to an organisation (particularly a public authority such as a trust) in defending proceedings if a dispute goes to tribunal.

Case study

Claimant Linda Sturdy, a radiographer, working at Leeds Teaching Hospitals Trust

Problem Ms Sturdy claimed for injury to feelings after she was passed over for a position running breast screening services in favour of a colleague 13 years her junior. Ms Sturdy was the preferred candidate for the role until she told a manager she was three years from retirement age.

Action Ms Sturdy was provided with a record injury to feelings award of £42,037 and aggravated damages on top of this of £7,125 (both inclusive of interest and uplift). Leeds Teaching Hospitals Trust, however, is likely to have to pay considerably more, either by way of settlement or a further employment tribunal award, for her loss of earnings and pension rights following her dismissal. This aspect of her claim has not yet been decided on.