Kulkarni & R(G) v X - contracts of employment, specific performance & human rights

1. Kulkarni & R(G) v X - contracts of employment, specific performance & human rights Andrew Stafford QC, Jeffrey Bacon and Katherine Apps Littleton Chambers Manchester Seminar 21 September 2010

2. The Cases • Kulkarni –v- Milton Keynes NHS Foundation Trust [2009] IRLR 829 -trainee doctor R (on the application of G) –v- Governors of X School -teaching assistant

3. Facts in Common • Internal disciplinary process / alleged sexual offences (putting stethoscope up patient’s knickers/kiss and contact with 15 yr old boy) • Loss of career/ability to practice not determined by that process • Trainee

4. Facts/Decision Kulkarni -1 • Trainee doctor accused re stethoscope • Suspended. Disciplinary proceedings likely • Internal rules used to prevent representation • Injunction to prevent proceedings

5. Facts/Decision Kulkarni -2 • Trust argues can only lose job, only GMC can bar from practise • C argues likely that alert letter (warning to other employers) would be issued • Court refers to that submission • (?) decision rests on fact that “effectively barred”

6. Facts/Decision G -v- X -1 • Teaching assistant accused re 15 yr old pupil • Disciplined. Refused representation at hearing and for Appeal (yet to take place) • Obligatory report to SOS (harmed a child or placed child at risk of harm) • SOS reports up to ISA, who advises SOS

7. Facts/Decision G –v- X -2 • First instance: - treated as single procedure - two breaches (representation, cross exam) • Court of Appeal: - interpretation of “decisive” - if 2 part process and one might have “:substantial influence or effect” on the other

8. Facts/Decision G –v- X -3 • Not de minimis – “major role” • Finding that “profound” influence likely -see Ocalan –v- Turkey (“irretrievably prejudiced”) • No hard and fast rule

9. Human Rights • Article 6 (1) ECHR first sentence: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..” • 2 limbs • Civil • Criminal – also relevant Art 6(2) and (3)

10. Human Rights Act 1998 Section 6: public authorities Section 3: duty of consistent interpretation Section 2: obligation to have regard to Strasbourg Kulkarni/ R(G) v X case law: Directly applies only to public authority employers BUT other routes relevant to all... Article 6(1) in employment law

11. “Determination” of “civil rights and obligations” The civil right The determination The cases: Kulkarni (para 62-77) R(G) v X (para 26, 28-38, 44-49)

12. Substantial influence or effect • R(G) v X (para 32, 37-38, 47) • What does “decisive” mean? • Going to Supreme Court Curative principle • R(G) v X (paras39-42 & 49) • Bryan v UK (1995) 21 EHRR 342 paragraph 46 - • Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295

13. Where else may Article 6(1) be engaged? • professional regulation • Midwifes, nursing, accountancy... • child/ vulnerable adult safety • Safeguarding Vulnerable Groups vetting and barring • BUT: private run, publicly funded, care homes are not section 6 HRA public authorities: YL v Birmingham City Council (HL) [2007] 3 WLR 112 (HL)

14. What does Article 6 (1) require? Public hearing Reasonable time Independent and impartial tribunal Hameed v Central Manchester University NHS Foundation Trust [2010] EWHC 2009 (QB) (para 90 Swift J) Legal representation R(G) v X (para 27, 50-54) R(Kirk) v Middlesborough Council and others [2010] EWHC 1035 Admin

15. Article 6(1)’s indirect influence • Unfair dismissal • Connelly v Western Health and Social Care Trust [2010] NIIT 4119_09IT • Section 10 Erel A 1999. No appeals yet. • Common law principles of fairness: EHRC’s argument in CA in R(G) v X (para 27) • Breach of contract

16. Specific Performance (1) • An axiom of employment law is that the courts will not enforce a contract of personal service by means of specific performance • Two reasons for this • Specific performance resembles slavery • Impracticality of a court supervising the relationship

17. Specific Performance (2) The influence of this axiom continues • TUPE Regulation 4(8) permits an employee to object to a transfer • Effect of objection is to terminate employment • In this way, the power of an employee to choose for whom he will work is preserved BUT over time, the principle has been eroded

18. Specific Performance (3) Injunctions now granted • To preserve employment relationship whilst contractual procedures are followed (e.g. Irani v Southampton HA 1985] ICR 590) • To restrain breaches of contract short of dismissal (e.g. suspension, as in Mezey v SW London NHS Trust No 2 [2008] EWHC 89) • To enforce substantive rights such as the right to legal representation (e.g. Kulkarni [2009] IRLR 829 • Employer may resist on grounds of lack of continuing trust & confidence • To enforce garden leave clauses

19. Specific Performance (4) • Perhaps even more powerful is the effect of victimisation legislation under the Equality Act 2010 & its predecessors • If the employee does a protected act, it creates a cordon sanitaire around the employee • The margin of error for an employer is slight • The effect is that the employer is stuck with an employee in whom it has no trust & confidence

20. Andrew Stafford QC, Jeffrey Bacon and Katherine Apps Littleton Chambers Manchester Seminar 21 September 2010 Kulkarni & R(G) v X - contracts of employment, specific performance & human rights