Ms R Moon v Lancashire and South Cumbria NHS Foundation Trust: 2414248/2021
| Jurisdiction | England & Wales |
| Judgment Date | 19 April 2022 |
| Date | 19 April 2022 |
| Citation | 2414248/2021 |
| Court | Employment Tribunal |
| Published date | 29 April 2022 |
| Subject Matter | Race Discrimination |
Case Number: 2414248/2021
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EMPLOYMENT TRIBUNALS
Claimant: Ms R Moon
Respondent: Lancashire and South Cumbria NHS Foundation Trust
PRELIMINARY HEARING
Heard at: Manchester (remote public hearing via CVP)
On: 5 April 2022
Before: Judge Brian Doyle
Appearances
For the claimant: In person
For the respondent: Dr E Morgan, Queen’s Counsel
RESERVED JUDGMENT
In relation to the respondent the claimant is a “worker” for the purposes of section
43K(1)(a) and/or section 230(3)(b) of the Employment Rights Act 1996 in respect of
her complaint under section 47B of that Act and is also in employment under a
contract personally to do work for the purposes of section 83(2)(a) of the Equality Act
2010 in respect of her complaint under sections 27 and 39 of that Act. Her claim may
now proceed to a final hearing as listed.
WRITTEN REASONS
The claim and the preliminary issue
1. The claimant complains of public interest disclosure detriment contrary to section
47B of the Employment Rights Act 1996 and of victimisation contrary to sections 27
and 39 of the Equality Act 2010.
Case Number: 2414248/2021
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2. The claimant accepts that she is not an employee of the Trust in the sense that she
accepts that she is not employed under a contract of employment by it. Her claim
proceeds only on the basis that she asserts her status as a worker as defined in
sections 43K(1) and 230(3) and (6) of the Employment Rights Act 1996; and on the
basis that she is in employment under a contract personally to do work as defined
in section 83(2)(a) of the Equality Act 2010. That status is not conceded by the
respondent.
3. The determination of her employment status is the preliminary issue before this
Tribunal. This results from a case management hearing on 18 January 2022
conducted by Employment Judge Shotter.
The respondent’s position
4. The respondent’s pleaded position is that the claimant was engaged by the
respondent as an Associate Hospital Manager (AHM) on 8 August 2016. The
respondent engages around 30 Associate Hospital Managers (AHMs). AHMs are
formally appointed by the Trust Board to act on its behalf. They have an important
statutory function in the discharge of patients who have been detained or made
subject to community powers under the Mental Health Act 1983 (MHA). AHMs are
independent of and are in no sense employees or officers of the respondent. They
are not paid a salary. They receive a sessional fee and travel expenses for the
sessions they attend. They are independent of the respondent Trust. Section 23(6)
of the MHA expressly prohibits employees or executive officers of the respondent
from performing the functions of an AHM. The respondent does not accept that the
claimant is a “contracted worker with workers’ rights”. The appointment as an AHM
necessitates independence from the respondent Trust.
The evidence
5. The Tribunal heard witness evidence from Dr David Fearnley on behalf of the
Trust. He is a Consultant Forensic Psychiatrist. He is employed by the Trust as the
Chief Medical Officer (an Executive Director position). He joined the Trust in
October 2020, having previously been the Executive Medical Director at Betsi
Cadwaladr University Health Board (2019) and Mersey Care NHS Foundation
Trust (2005). He gave evidence via a witness statement. His evidence was
designed to provide information on the position of Associate Hospital Manager
(“AHM”) within this Trust and his understanding of the relevant statutory framework
for the role. His evidence was unchallenged.
6. The claimant did not give evidence, but relied upon her written submissions.
7. The Tribunal also had the advantage of an electronic bundle of documents to which
reference is made in square brackets below. The bundle contained 432 pages plus
index.
Findings of fact
8. It appears to be common ground as follows.
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