R (on the application of Wright and others) v Secretary of State for Health and others (2007, IRLR 507)

Article 6 of the European Convention on Human Rights (ECHR) says that workers have a right to a fair hearing; article 8 gives them a right to a private life.

In R (on the application of Wright and others) v Secretary of State for Health and others (2007, IRLR 507), the High Court said that “provisional listing” of care workers under UK legislation infringed both these rights.

Basic facts

Part VII of the Care Standards Act 2000 introduced the Protection of Vulnerable Adults list (POVA), which prohibits care workers named on the list from working with vulnerable adults.

Section 82(2) of the Act states that providers must refer care workers to the Secretary of State if they dismiss them for misconduct in relation to a vulnerable adult. They must also refer them even if the worker resigns (or retires) if their misconduct would have resulted in dismissal.

Once the employer has made the referral, the Secretary of State then decides whether to include that person on the POVA list on a provisional basis. Once on the list, the employer must dismiss them. Even if the care worker has found work with someone else, the new employer is required to dismiss them, suspend them or transfer them to non-care work.

All the claimants in this case were placed on the provisional list, Mrs Wright being included on the basis of alleged misconduct that pre-dated the provisions. As a result of being named on the list, they were dismissed. The care workers applied for judicial review of the Secretary of State’s decision.

Issues for the Court

The High Court had to decide two points:

  • Whether the Secretary of State could include someone on the list if the alleged misconduct preceded the date that the Act came into force
  • Whether the provisions of Part VII were compatible with the rights of care workers under articles 6 and 8

 

Retrospectivity

The High Court said that the Secretary of State could include a person on the POVA list under section 82, even if the alleged misconduct preceded the introduction of that section of the Act.

This was because the wording of section 82 was identical to the wording in the Protection of Children Act 1999, which made clear that the Secretary of State could act on a reference by a child care organisation based on events before the Act came into effect. The court concluded that Parliament must therefore have intended the same principle to apply to the Care Standards Act.

Articles 6 and 8

However, it said that the provisions of Part VII of the 2000 Act were not compatible with the rights of care workers under articles 6 and 8 of the ECHR.

Although the court recognised that employers sometimes needed to take urgent action to protect vulnerable adults, care workers also needed protection against unfounded allegations. The legislation, however, did not provide them with any protection because, unless their employer suspended or transferred them (and there was no statutory obligation on them to do so), they automatically lost their job once their name went on the list.

They then had to wait at least nine months to apply to the Care Standards Tribunal to challenge their dismissal. Their only other option was to apply for judicial review which the court said was not an adequate remedy, as it did not provide the listed person with “a speedy judicial determination of the underlying facts; and in particular whether he had committed the misconduct alleged.”

As for article 8, the court said that the implications of provisional listing for a care worker were “calculated to interfere with his personal relationships with colleagues and the vulnerable persons with whom he has worked, and with others”.

The Act therefore infringed the rights of care workers because the procedures laid down in relation to provisional listing were unfair and did not ensure due respect for their interests.