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Health Secretary ‘Stepped Into Shoes’ of Abolished NHS Trust

A psychotherapist who was dismissed on the same day that her NHS Trust employer ceased to exist has convinced the Employment Appeal Tribunal (EAT) that the Secretary of State for Health ‘stepped into the shoes’ of the Trust on its dissolution and inherited all of its actual and potential liabilities.

Prior to her dismissal, the woman had launched employment tribunal proceedings against the Trust, alleging victimisation and sex discrimination. Almost as its last act before it was dissolved, the Trust dismissed her, citing an alleged breakdown in the relationship of mutual trust and confidence.

The woman lodged a second complaint with the tribunal, claiming that she had been automatically unfairly dismissed for whistle blowing. The Secretary of State gave notice to the tribunal that the Trust had been abolished as part of NHS reforms and accepting responsibility for its residual liabilities. The Trust was replaced by the Secretary of State as respondent to the proceedings.

The woman sought interim relief from the tribunal in the form of a continuation order under section 128 of the Employment Rights Act 1996 that would require the continued payment of her salary and benefits, as per her employment contract, pending the outcome of the proceedings.

The tribunal declined jurisdiction to hear the interim relief application after accepting the Secretary of State’s arguments that the Trust had ceased to exist and that he was not and never had been the woman’s employer. On that basis the tribunal ruled that there was no employer against whom a continuation order could be made.

In upholding the woman’s appeal against that decision, the EAT found that the Secretary of State stood in the shoes of the abolished Trust for all purposes in the litigation. The application for a continuation order did not fall outside the Secretary of State’s potential liabilities and he was obliged to respond to it. The woman’s application for interim relief was remitted to the tribunal for full consideration.

Langton v The Secretary of State for Health. UKEAT/0376/13