News - Stewart v NHSBSA: Consultant’s professional leave was in the course of his employment

Employment & Discrimination - Sarah Keogh

Stewart v NHSBSA: Consultant’s professional leave was in the course of his employment

 

Dr Stewart (‘Dr S’) is a consultant paediatric intensivist who was working for an NHS Foundation Trust, under terms and conditions incorporating the 2003 Consultant Contract. In 2010 was invited to speak at a conference in India relevant to his field. He applied for, and was granted, paid professional leave to attend. He attended the conference for 5 days in October 2010, after which he took 2 weeks of annual leave travelling in India with his wife. During his time in India he was bitten by a mosquito and developed Dengue fever and chikungunya, causing a debilitating condition which ultimately left him unable to work.

He applied for temporary injury allowance under the National Health Service (Injury Benefits) Regulations 1995, which is payable where a disease is contracted in the course of employment which it wholly or mainly attributable to the employment, or a disease which is wholly or mainly attributable to the duties of employment. The Trust referred the matter to NHSBSA, who rejected his application. Dr S appealed to the Pensions Ombudsman. The matter came before the High Court in a statutory appeal against the Ombudsman’s decision. HHJ Davies had two broad issues to consider:

  • Whether the Ombudsman was correct to conclude that Dr S had not attended the conference in the course of his employment (the ‘employment issue’);
  • Whether the Ombudsman was correct to adopt the opinion of his adjudicator that Dr S could not show that he was bitten at the conference (the ‘causation issue’).
  • Finding in Dr S’s favour on both issues, HHJ Davies gave guidance to the approach to be taken in this type of case.

In relation to the employment issue, the proper construction of the Regulations required the relevant disease to be identified, and for the employee’s contractual duties to be identified by reference to his contract of employment. A determination could then be made as to whether the disease was contracted in the course of employment. That involved considering whether the disease was contracted at a time when the claimant was in the process of performance of activities which were part of his contractual duties, including activities reasonably incidental to those contractual duties. If so, the next question was whether the employment was the whole or main cause of the disease being contracted. This is an enquiry as to the reasons the disease was contracted and whether the sole or predominant reason was to do with the employment. A decision would have to be made by reference to all the circumstances of the case. If the answer to either of these questions was no, consideration should be give to whether the duties of employment were the whole or main cause of the disease being contracted.

In the present case, the Ombudsman had erred in his approach. Dr S’s contract of employment obliged him to undertake continuing medical education, including complying with CPD obligations, as well as teaching and other non-clinical responsibilities. There was an expectation of entitlement to paid professional or study leave of up to 30 days per year and a discretionary entitlement to further professional or study leave outside the UK on a paid, part-paid or unpaid basis. Professional and study leave would have to be applied for. If a consultant did not undertake professional or study leave, they would not be complying with their contractual duties and would be in breach of their duties of employment. In the case of a consultant such as Dr S there was no hard-edged dividing line between professional leave and working time. There was not reason why a consultant taking paid professional leave with the consent of his employer to attend a professional conference on a subject to do with his contractual clinical field should not be engaged in the performance of his contractual duties. Dr S’s attendance at the conference was therefore in the course of his employment. In the alternative, it would have been reasonably incidental to the performance of his contractual duties, and Dr S would also satisfy the test of the disease being wholly or mainly attributable to the duties of employment.

On the causation issue, there were plain errors in the Ombudsman’s determination. HHJ Davies rejected NHSBSA’s suggestion that Dr S was properly required to produce contemporaneous medical evidence to support his contention that he was bitten at the conference (which he could not reasonably have produced). It was incumbent on NHSBSA, as primary decision maker, to reach an opinion as to whether or not, on the balance of probabilities, Dr S had developed infective symptoms within two days after the end of the conference (which would then, according to its own medical advisor, point to him having been bitten during the conference). By seeking corroborative evidence, in circumstances where Dr S’s credibility was not in dispute, it had abdicated that responsibility. HHJ Davies concluded that the evidence before NHSBSA clearly established that on balance the infected mosquito bite happened at the conference, and any other conclusion would have been perverse.

It was ordered that the Ombudsman’s decision be quashed, and that he should instead direct NHSBSA to make a finding that Dr S did fall within Regulation 3(2) and should be paid benefit retrospectively together with interest.

The judgment will provide useful guidance to those seeking payment of benefits under the Regulations, and under other Regulations adopting similar wording. There may also be a broader benefit to consultants as a result of the findings that undertaking professional leave away from an employing Trust can, in these circumstances, constitute fulfilment of contractual obligations.

Sarah Keogh successfully represented Dr Stewart on behalf of the British Medical Association.

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