Stewart v NHS Business Services Authority

Under regulation 3(2) of the National Health Service (Injury Benefits) Regulations 1995, the “course of employment” gateway requires both a temporal connection with employment and a causal connection between the employment and the disease. The alternative “duties of employment” gateway requires only that the disease be wholly or mainly attributable to the duties of employment. Professional or study leave is not necessarily separate from working time. For a skilled professional, attendance at a relevant conference on paid leave approved by the employer may constitute performance of contractual duties, even where attendance was voluntary. A decision-maker must determine causation on the balance of probabilities and must consider relevant evidence. It cannot require contemporaneous corroboration as a precondition of proof.

The appellant, an NHS consultant, contracted dengue fever and chikungunya during a professional conference in India followed by annual leave. He claimed temporary injury allowance under regulation 3(2) of the National Health Service (Injury Benefits) Regulations 1995.

The NHS Business Services Authority rejected the claim. The Pensions Ombudsman dismissed the appellant’s complaint, principally on the basis that attendance at the conference on professional leave was not in the course of NHS employment. The appeal concerned the construction of regulation 3(2), whether the conference attendance fell within either statutory gateway, whether the infection was contracted during the conference, and whether the decision-makers had lawfully addressed those issues.

1. Appeal allowed. The Pensions Ombudsman had failed to address the alternative duties of employment gateway and had treated the Working Time Regulations 1998 as effectively determinative. That was an error of law.
2. Regulation 3(2) contains two gateways. The course of employment gateway requires the disease to have been contracted in the course of employment and to be wholly or mainly attributable to employment. The duties of employment gateway requires only that the disease be wholly or mainly attributable to the duties of employment.
3. The proper approach is to identify the disease, identify the employee’s contractual duties, decide whether the disease was contracted while performing those duties or activities reasonably incidental to them, and then consider whether employment was the whole or main cause. If the course gateway is not satisfied, the duties gateway must separately be considered by asking whether the duties were the whole or main cause.
4. Professional leave and working time are not separated by a hard-edged rule. On the undisputed facts, paid and employer-approved attendance at a conference within the consultant’s clinical field, involving speaking, teaching, participation and continuing medical education, was performance of contractual duties. It was irrelevant that the appellant had volunteered to attend and was not required to do so. The same facts also satisfied the duties of employment gateway. Attendance was, alternatively, reasonably incidental to the contractual duties.
5. The attribution argument failed. The fact that another person might also have been bitten by an infected mosquito did not make employment merely the setting for the disease. Where the bite occurred at the workplace or conference venue, there was a sufficient connection with employment unless the incident had no real connection with work or had a more significant unrelated cause.
6. The BSA had abdicated its responsibility by requiring contemporaneous corroboration and failing to determine the causation issue on the balance of probabilities. The Pensions Ombudsman also failed to give adequate reasons and adopted a materially erroneous factual basis. On the written evidence, the only rational conclusion was that the appellant had contracted the infection at the conference.
7. The determination was to be quashed. The Pensions Ombudsman was directed to issue a new determination requiring the BSA to treat regulation 3(2) as satisfied and determine the appellant’s entitlement to temporary injury allowance, including any back benefits and prescribed interest.

High Court (Chancery Division): appeal from the determination of the Pensions Ombudsman dated 18 October 2017. The determination was to be quashed and a fresh determination directed.