Lancashire and South Cumbria NHS Foundation Trust v R Moon

Section 23(6) of the Mental Health Act 1983, which prevents an NHS foundation trust from authorising its employees or executive directors to exercise discharge powers, does not expressly or necessarily prevent an Associate Hospital Manager from being a limb (b) worker. The statutory requirement for independence in decision-making does not require the denial of statutory employment protection.

Worker status depends on applying the statutory definition realistically to the agreed facts. A contractual relationship may arise from trust-specific terms and from individual paid sittings. Independence at the point of deciding whether to discharge a patient is compatible with subordination and control in other aspects of the engagement.

The claimant was appointed by the NHS foundation trust as an Associate Hospital Manager. She sat on panels reviewing the detention of patients under the Mental Health Act 1983. Her engagement included a fixed-term honorary contract, remuneration for sittings, training, appraisal and minimum participation requirements.

The Employment Tribunal held that she was a limb (b) worker under section 230(3)(b) of the Employment Rights Act 1996 and was employed under a contract personally to do work for section 83(2)(a) of the Equality Act 2010. The trust appealed, contending that section 23(6) of the Mental Health Act 1983, the claimant’s statutory role and Article 5 of the European Convention on Human Rights precluded a contractual worker relationship.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding that the claimant was a limb (b) worker and was employed under a contract personally to do work.

2. The proper starting point was the statutory wording of section 230(3)(b) of the Employment Rights Act 1996, applied realistically and purposively. The Tribunal was entitled to find contractual relations from the trust-specific terms of engagement and from the individual agreements made when the claimant accepted paid sittings.

3. Section 23(6) of the Mental Health Act 1983 neither expressly nor by necessary implication excludes an Associate Hospital Manager from worker status. It prohibits an employee or executive director from being authorised to exercise the statutory discharge powers. It does not prescribe the detailed terms of appointment or require the removal of all employment protection.

4. The claimant’s independence when deciding a patient’s detention did not make her analogous to an arbitrator in Hashwani. The relevant relationship was between the claimant and the trust, not between the claimant and the patient. She could be independent at the point of decision-making while remaining subject to the trust’s requirements concerning the performance and organisation of her role.

5. Worker status did not compromise the independence or integrity required by section 23(6), the Code or Article 5 ECHR. Protection for public-interest disclosures could instead promote that independence. On the accepted facts, the Tribunal’s conclusion was plainly open to it and was correct.

• Employment Appeal Tribunal: Appeal dismissed; the Tribunal’s jurisdictional finding was upheld.
• Manchester Employment Tribunal: Held that the claimant was a worker under section 230(3)(b) of the Employment Rights Act 1996 and employed under a contract personally to do work under section 83(2)(a) of the Equality Act 2010.