WHEN CONSCIENCE ISN'T CLEAR: GREATER GLASGOW HEALTH BOARD v DOOGAN AND ANOTHER [2014] UKSC 68

The Supreme Court's judgment in Doogan is a judicial review of a decision by Greater Glasgow Health Board regarding the scope of the conscience-based exemption in section 4(1) of the Abortion Act 1967. The case progressed through the Outer and Inner Houses of the Court of Session in Edinburgh before final judgment was delivered in the Supreme Court by Baroness Hale on December 17 2014. The Supreme Court eschewed consideration of the human rights dimension of the case (which had featured in the Outer House decision) and approached its judgment as 'a pure question of statutory construction'. This commentary engages with the judgment on its own terms, assessing it as an exercise in statutory interpretation, and leaves it to others who may wish to do so to comment on the human rights aspects of the case.

The scope of the conscience-based exemption in Section 4(1) of the Abortion Act 1967: Doogan and Wood v NHS Greater Glasgow Health Board [2013] CSIH 36

Doogan is a judgment of the Inner House of the Scottish Court of Session in an action brought by two midwives ('petitioners' at first instance and 'reclaimers' on appeal) for judicial review of a decision by Greater Glasgow and Clyde Health Board ('respondents'). At issue in the litigation was the scope of the conscience-based exemption contained in section 4(1) of the Abortion Act 1967, which included consideration of where the burden of managing the exemption should fall. The court of first instance (Outer House) had held that section 4(1), which exempts people with a conscientious objection from having to 'participate in any treatment authorised by this Act', ought to be read in light of section 1, which was the authorising provision. On the analysis adopted by the Outer House, any activity which was not unlawful before the 1967 Act came into force, and which therefore did not require to be authorised by section 1, was not covered by section 4(1). Roles which consisted of 'supervision, delegation, and support' were held not to fall within the scope of section 4(1) for this reason. The Inner House rejected the argument that the scope of the exemption in section 4(1) must be coextensive with the scope of the authorisation in section 1, and held that section 4(1) covered the 'whole process of treatment' given for the purpose of terminating a pregnancy. For the Inner House, therefore, 'supervision, delegation, and support' of staff directly involved in the abortion process did constitute the kind of 'participation' that a person could be exempted from under section 4(1). Moreover, the court took the view that the reclaimers' interpretation of section 4(1) was also to be preferred in terms of its likely management consequences. The appeal succeeded, and the Health Board has begun the process of appealing to the UK Supreme Court.

[Psychological harassment]

Two types of harassment are distinguished: sexual and psychological. In the private sector, according to French labour laws and the penal code, psychological harassment is actionable. It is up to the employer to prove the absence of harassment. The sanctions incurred can be up to 5 years imprisonment and a 150,000 euro fine and various measures of compensation for damages can be envisaged.

Flexible working requests and the law: a guide for district nurses

Flexible working provides employees with the ability to make it easier to balance work and caring responsibilities. All qualifying employees, including those who are district nurses, have a right to request an adjustment to their working hours and work patterns. Where the request is refused an appeal can be made to an employment tribunal and further action can be considered on the grounds of discrimination.

The law and grievance resolution in the workplace: a guide for DNs

Disputes at work are never pleasant and can lead to long term strain on the relationship between district nurses and managers. It is in the best interest of both to deal with any problems openly and fairly. The legislation relating to workplace grievances and claims arising from these to an employment tribunal changed on 6th April 2009. The new framework requires grievances to be resolved by both the employer and employee working together and abiding by a revised statutory Code of Practice from the Advisory, Conciliation and Arbitration Service (ACAS, 2009a). It is, therefore, important that district nurses are aware of the new law, the Code and their rights in the event of a grievance at work.

Pattern of workplace disputes in cancer survivors: a population study of ADA claims

BACKGROUND

The Americans with Disability Act (ADA) claim patterns can provide information on sources of potential work discrimination faced by employees with various health problems. This study investigated the pattern of ADA disputes among cancer survivors and non-cancer related impairments.

MATERIALS AND METHODS

Using multivariable logistic regression adjusting for demographics, employees with cancer related claims were compared to employees with other impairment related claims for alleged violations from 2000 to 2005. The impairments were grouped into orthopedic, behavioral, medical, neurological, sensory, cancer, cancer comorbid (cancer and non-cancer impairments), and comorbid "other" (non-cancer comorbid disorders). The dispute categories included: termination, reasonable accommodation, relations, terms, hiring, and a nonspecific "other" category.

RESULTS

This study analyzed 59,981 cases over a 6 year period. All comparisons were made in relation to the cancer group. There was a protective effect for any impairment other than cancer (OR = 0.29-0.63, 95% CI = 0.25-0.72) related to discharge from work. Also, orthopedic (OR = 0.81, 95% CI = 0.71-0.93), general medical (OR = 0.82, 95% CI = 0.72-0.94), and neurological (OR = 0.83, 95% CI = 0.71-0.96) impairments were found to be protective for claims related to terms of employment relative to cancer. Cancer survivors who reported a second impairment in addition to cancer were more likely to file disputes that involved relations with others at work (OR = 1.47, 95% CI = 1.16-1.87) in comparison to those with cancer only. Orthopedic (OR = 2.42, 95% CI = 2.13-2.76), neurological (OR = 1.50, 95% CI = 1.30-1.72), and sensory (OR = 1.50, 95% CI = 1.29-1.73) groups were more likely to file accommodation related disputes than the cancer group. Sensory (OR = 4.41, 95% CI = 3.45-5.63), other-comorbid (OR = 2.33, 95% CI = 1.85-2.94), medical (OR = 1.92, 95% CI = 1.51-2.44), and neurological (OR = 1.59, 95% CI = 1.23-2.05) impairment groups filed more disputes related to hiring than the cancer or the cancer-comorbid group.

CONCLUSION

Cancer survivors are more likely to file job loss claims and differential treatment related to workplace policies. Those with cancer and another impairment file more claims related to relationship problems at work than cancer only. The factors accounting for these claims need to be explored in future research in order to develop more specific evidence based policy and practice.

IMPLICATIONS FOR CANCER SURVIVORS

While the percentage of cancer survivors who file claims are relatively small, job termination and terms of employment are more likely to be concerns for cancer survivors than employees with other types of impairments. If a cancer survivor has another health problem as well relationship disputes are likely to emerge.

Investigating claims of harassment and discrimination in a workplace

This article presents a case study of a situation in a large academic practice that could have resulted in a harassment lawsuit due to improper handling by management. It also suggests steps any practice can take to avoid lawsuits by incompetent employees who are fired.