0800 652 3371

Using Restrictive Covenants to Protect Your Business

Post-termination restrictive covenants are clauses in employment contracts designed to prohibit employees from taking certain steps after their employment has come to an end. The aim of such provisions is to prevent or limit the damage that an existing employee could do to the employer’s business with the knowledge they have gained and the relationships they have made during their employment.

How Do Restrictive Covenants Benefit Employers?

Departing employees may attempt to use confidential information, strategic plans, customer/client details or other information about their employer’s business to set up in competition or benefit their new employer. Restrictive covenants in employment contracts are beneficial to employers as they impede this and, indeed, often prevent it altogether.

In the event that an employer believes that a former employee has breached a post-termination restrictive covenant, they can take enforcement action by way of threatening, and if necessary commencing court proceedings for, an injunction and/or damages against the employee and/or their new employer or, if applicable, their new business entity.

Types of Restrictive Covenants

The standard types of restrictive covenants found in contracts of employment are:

  • Non-solicitation covenants – to prevent the employee approaching the clients, customers or suppliers of the former employer.

  • Non-dealing covenants – to prevent the employee dealing with clients, customers or suppliers of the former employer, irrespective of which party approached the other.

  • Non-poaching covenants – to prevent the employee poaching former colleagues.

  • Non-competition covenants – to restrict the employee from competing with the former employer i.e. by working for a competitor or setting up their own competing business.

The Importance of Carefully Drafted Restrictive Covenants

For a restrictive covenant to be enforceable, an employer must show that it is no wider than is reasonably necessary to protect its legitimate business interests. Legitimate business interests include:

  • protecting trade secrets and/or confidential information;
  • protecting trade connections with customers, clients or suppliers; and
  • maintaining the stability of the workforce.

When assessing the enforceability of post-termination restrictive covenants, the court will consider if they are reasonable, having regard to the interests of the parties and the public interest. It is not unusual for us to come across restrictive covenants which are drafted in such a way that there is little to no chance that a court would enforce them. To avoid the risk of unenforceable restrictive covenants, employers should tailor the covenant to the individual employee and take legal advice accordingly.

Further to the above, the question of reasonableness of a restrictive covenant will be considered at the time the covenant was entered into, so it is important to review them from time to time. For example, if an employee is promoted or otherwise changes role, their original restrictive covenants may no longer be appropriate or enforceable, and employers should review and update them as necessary.

The Importance of Incorporation

Even well-drafted restrictive covenants will not be enforceable if they are not properly incorporated within the employment contract.

It is common for employers to:-

  • enter into a binding agreement to appoint a new employee (often verbally), but to only issue a written contract containing restrictive covenants, and other terms and conditions which were not communicated prior to the appointment being agreed, afterwards; or
  • issue a first written contract, or perhaps an amended one, containing restrictions well into the employment

without the employee receiving any “fresh consideration”, i.e. anything in return for the new terms and conditions that they would not otherwise have received.

It is therefore also important to obtain appropriate advice and guidance in relation to the incorporation of restrictions, as well as their drafting.

Strategy

Last but by no means least, employers should be mindful that, if not handled correctly, to impose restrictive covenants, or any other new terms, on an existing employee can have implications for employment relations and, worse, can result in claims for breach of contract and, if the employee has more than 2 years’ continuous service, unfair dismissal; whilst collective consultation can be required where it is proposed to force contractual changes on 20 or more employees at one establishment. Strategy considerations are therefore another important aspect for specialist advice.

For further information, contact a member of Lanyon Bowdler’s employment team.

Losing Capacity Doesn’t Have to Mean Losing Control

Around 40% of people have a Will, even fewer have a Lasting Power of Attorney (“LPA”). A lot more people consider what will happen after they pass away but very few consider what will happen should they or a loved one lose capacity, or otherwise require assistance. Unfortunately, sometimes it takes a high profile story to remind us of the potential gaps in our own planning. Recently, many of us will have seen the devastating story of Good Morning Britain host, Kate Garraway.

Kate found herself in the unfortunate position where her husband, Derek Draper, fell ill with coronavirus. On top of the stresses involved with having a family member fall seriously ill, Kate has had to deal with the complicated legal obstacles in place that prevent her from managing her husband’s care or finances.

What is an LPA?

An LPA is the successor to what many will know as an Enduring Power of Attorney (“EPA”) and replaced it in October 2007.

As with its predecessor, it is a legal document that allows you to appoint one or more individuals, who unsurprisingly become known as your attorneys. These people can then assist you in making decisions or, if necessary, they can make decisions on your behalf.

With a carefully drafted LPA, losing capacity doesn’t mean losing control, you can give your attorneys the power to deal with all your affairs or you can limit their powers. You can define the attorneys’ authority.

A key difference between an EPA and an LPA, is that there are two main types of LPA:

  • property and financial affairs; and

  • health and welfare.

Property and Financial Affairs LPA

A property and financial affairs LPA gives your attorneys the power to make decisions about your finances, this can include:

  • paying bills;

  • buying or selling property;

  • collecting benefits or a pension; and

  • managing bank accounts.

As mentioned previously, you can give your attorneys the power to deal with some of your financial affairs, or only certain things. So, for example, this could be all of the things listed above or just two or three of them.

In Kate’s situation, this LPA could have assisted her in managing her mortgage or any accounts in Derek’s sole name.

It’s important to seek advice and to have your LPA worded very carefully to ensure that you give your attorneys the powers you want them to have and it is clear to them what authority they have to deal with your affairs.

This LPA can be used as soon as it is registered, and, if you elect for it to do so, before you lose capacity, with your permission of course. This means your attorneys can assist you with your financial affairs even when you are still capable. You might not think that this would appeal to you, and it is a personal choice to make, however, many people would have found this quite useful during the coronavirus pandemic where they have needed to shield or isolate.

Health and Welfare LPA

A health and welfare LPA offers something its predecessor doesn’t, it can allow your attorneys to make decisions on things like:

  • where you live;

  • your daily routine, including what you wear and what you eat;

  • medical care; and

  • moving into a care home.

As with the property and financial affairs LPA, you can make a health and welfare LPA which deals with all aspects of your personal welfare or just certain things.

For Kate, this would have given her legal authority to make decisions and manage Derek’s care.

Again, it’s important to seek advice and to have your LPA worded very carefully. There is also some overlap with what is called a Living Will and you should consider how one may have an effect on the other. It is therefore important to consult a specialist to ensure that your wishes are enacted as you intended.

This LPA can be used as soon as it is registered, but it is not possible to use it until you have lost capacity.

Do I really need one?

There are common misconceptions with what you can do in the absence of a power of attorney, many people believe that their next of kin will always get the final say when they are unable to make decisions for themselves, or that a couple with a joint bank account or a home in joint names can act for the other.

However, whether or not you will actually ever need an LPA is a very difficult question to answer and no one can say for sure. What we do know is that the unexpected can happen and I like to think of an LPA as an insurance policy, you never take insurance out planning to use it but you’re happy you have it when you do need it.

There are many reasons we might lose capacity over our lifetime, one in three of us will develop dementia and every ninety seconds in the UK someone is admitted to hospital with an acquired brain injury.

Having an LPA has the benefit of not only allowing you to choose the person in charge of making decisions for you, it makes it easier for your loved ones. Without one, your loved ones may need to apply to the Court of Protection and a deputy may need to be appointed. This can be a long and onerous process in a time of uncertainty.

What Can Lanyon Bowdler Do to Help?

With nearly twenty-two thousand applications for LPAs in 2019/20 being rejected by the Office of the Public Guardian, it can be important to consider legal advice when drafting the necessary documentation.

Our private client team has decades of combined experience in helping clients deal with their affairs.

We can assist in preparing your LPA or any side letters you may wish to accompany your documentation.

Contact a member of our team today to see how we can help you.

Do Workers have the Right to Carry-Over Payment where Annual Leave has been Taken but they have not been Paid for it?

In Smith v Pimlico Plumber Ltd, the Employment Appeal Tribunal has confirmed that any worker who has been permitted to take annual leave, but has not been paid for it, cannot carry-over a right to payment for that annual leave.

Mr Smith worked for Pimlico Plumbers Limited from August 2005 to May 2011. During this time, Mr Smith actually took periods of unpaid annual leave, Pimlico regarding Mr Smith as a self-employed independent contractor with no entitlement to paid annual leave. Following a dispute with Pimlico, Mr Smith terminated his contract with Pimlico claiming they had acted so as to fundamentally breach his contract with them.

On 1 August 2011, Mr Smith commenced a claim for holiday pay, amongst other things. Pimlico argued that Mr Smith was not an employee or a worker and therefore had no entitlement to paid annual leave, but they were unsuccessful in this argument when tested before the Supreme Court.

However, notwithstanding the ruling that Mr Smith was a worker and entitled to paid annual leave, the Employment Tribunal dismissed Mr Smith’s holiday pay claim on the basis that Mr Smith could not correctly claim for carried over accumulated holiday pay as he had, as a matter of fact, been permitted to take holiday but had not received payment for it. The Tribunal made the distinction between Mr Smith’s case and the facts in King v Sash Window Workshop, where the claimant had accrued leave but had not taken it during his employment.

Mr Smith appealed, but the Employment Appeal Tribunal upheld the decision and confirmed that the Employment Tribunal was not mistaken in its interpretation of King. It was noted that Mr Smith had not been prevented from exercising his right to take leave and was not deterred from taking annual leave because he knew he was not going to be paid. Unlike the claimant in King, Mr Smith took leave and benefited from periods of rest.

This is a very significant case for employers seeking to rectify historic paid annual leave deficiencies.

When are workers entitled to carry-over payment for paid annual leave?

King v Sash Window Workshop established that where an employer has told the worker that leave will be unpaid, and this has dissuaded the worker from taking leave, the right to any untaken Working Time Directive leave (4 weeks) will carry over, potentially until termination.

Workers must be given an effective opportunity to take their statutory holiday and employers must be able to show they have enabled workers to take their holiday.

For further information, contact a member of Lanyon Bowdler’s employment team.

Self-employed or Workers? Supreme Court Unanimous Decision in Favour of Uber Drivers

From 17 March 2021, Uber has agreed to give its UK drivers a guaranteed minimum wage, holiday pay and a pension. This decision is a direct result of the Supreme Court’s decision that Uber drivers are considered “workers” and not “self-employed”, after they dismissed Uber’s appeal.

The judgment had been eagerly awaited since the initial Supreme Court hearing in 2020. However, the outcome was no great surprise, considering that it was the fourth time the courts had reached the same conclusion. The significance of this decision is that there is no further right of appeal and therefore Uber must now finally contend with a definitive ruling that their drivers are workers under UK employment legislation.

From 17 March 2021, Uber has made the following changes:

  • They will pay at least the National Living Wage for over 25s, irrespective of a driver's age.
  • All drivers will be paid holiday time based on 12.07% of their earnings, paid out on a fortnightly basis.
  • Drivers will automatically be enrolled into a pension plan with contributions from Uber alongside driver contributions.
  • Uber will continue to offer free insurance in case of sickness or injury as well as parental payments, which have been in place for all drivers since 2018.
  • All drivers will retain the freedom to choose if, when and where they drive.

The judgement comes after a long-running battle in the UK courts, led by two former Uber drivers, who won an employment tribunal claim in October 2016. Uber unsuccessfully appealed the decision four times, taking it all the way up to UK’s highest court.

In reaching their decision on establishing ‘worker status’, the Supreme Court emphasised five factors, previously highlighted by the Employment Tribunal, which they found were particularly indicative of a worker relationship:

  • Uber dictated how much drivers were paid and whether to refund passengers.
  • Drivers had no ability to negotiate the terms in relation to their contract with Uber.
  • Once a driver logged into the Uber app, they were constrained in rejecting trips as the rate of acceptance and cancellation was monitored.
  • Uber monitors a driver’s service through a rating system, and had the capacity to terminate a driver if the service did not improve after repeated warnings.
  • The relationship between the driver and the passenger was restricted to a minimum, preventing the driver from establishing a relationship with a passenger capable of extending beyond an individual ride.

Further implications for Uber

We have not seen the end of this particular case, since the worker status issue was only preliminary. It will now return to the Employment Tribunal to determine the compensation due to the drivers in respect of their claims for holiday pay and unlawful deductions from wages.

Further, there has been no mention by Uber of volunteering compensation to its drivers generally for past entitlements, and the minimum payments that Uber has said it will apply going forward will not be paid when drivers are logged on but not carrying out trips. The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto their app, not only when they are carrying out trips.

Numerous linked cases in the UK have been stayed pending the outcome in the Supreme Court and will now be recommenced, and the floodgates may now be open for many more.

If you are unsure of your employment status or work with contractors, it is best that you receive legal advice to ensure the validity of your agreement. Please contact our team.

Testing Times for Separated Families

The pandemic has raised significant issues for separated parents who have had to struggle with making decisions for their children, often in the face of objection or disagreement from their ex-partner.

Under the Children Act 1989 the holders of parental responsibility cannot make unilateral decisions for their children. That is to say, they should not make decisions without the other parents’ consent.

The pandemic has meant parents have had to consider;

  • Can a child move between two households during lockdown?
  • If the child is home schooling, which parent should be responsible for that and can normal contact arrangements continue?
  • If the parents live a significant distance from one another, should the parent travel to the child’s’ local area for contact to avoid the child having to travel unnecessarily, if so what happens if the hotels and local amenities are closed?
  • If vaccination is extended for children, can the parents agree the child should receive the vaccination?
  • Now the most pressing decision is what should happen during the school holidays, can the children travel abroad?

Most families share the school holidays and often the only factor they have to consider is that the time falls within their allocated time with their child, so as not to fetter the other parents time. Or whether sufficient information has been shared with the other parent about hotel details, travel arrangements etc.

Now the government task force is due to report on 17 May and only then will parents know the exact rules for overseas travel regarding tests and jabs.

If all goes to plan parents will be able to go abroad from 17 May but that will not be the end of the matter.

COVID-19 tests with a negative result taken hours before travel will almost certainly be required for all those returning to the UK.

What happens, therefore, if you are returning at the end of a half term week or the end of the summer holidays, when the child has to go back to school? Should you run the risk of being stuck in a foreign country, unable to return if you or your child has a positive test result? A decision that will impact the child’s education.

What happens if one parent plans to go on their holiday the day after the other parent returns from their summer holiday? The second parent will be unable to go if the child is stuck and cannot return to the UK, or is having to quarantine.

Police, Crime, Sentencing and Courts Bill

Following the controversial scenes in Bristol over the weekend, the following are some of the ‘highlights’ of the Police, Crime, Sentencing and Courts Bill that the government is hoping to enshrine in law in due course.

Police Powers

The bill proposes amendments to the Public Order Act 1986, which civil liberty groups fear could significantly increase police powers to restrict people’s rights to assemble or congregate in public places, for example. It will also increase police powers to stop and search those suspected of carrying a blade, a controversial step given the current racial disparity in how searches are presently carried out.

Criminal Records

The government is proposing to reduce the time that previous convictions have to be disclosed to future employers for sentences under four years’ imprisonment and community orders. There are also plans to introduce a rehabilitation period for certain jobs where the sentence exceeds four years.

Out of Court Disposals

As there is significant evidence that diverting people from the criminal justice system reduces the likelihood of future reoffending, greater powers are proposed, such as diversion to address, for example, addiction or mental health issues.

Problem Solving Courts

There will be greater emphasis on courts to offer more intensive and structured support with rewards and incentives for progress but sanctions for disengagement. The aim is that such orders will be more responsive to the individual’s need and reduce reoffending in the process.

Increased Sentencing Powers

The maximum sentence for assault on an emergency worker will double from 12 months to two years.

  • Whole life orders (life imprisonment) will be imposed for child killers.
  • Causing death by dangerous driving will be increased to a maximum of life imprisonment.
  • Offenders sentenced for serious violent or sexual offences will no longer be automatically released at the halfway point of their sentence.

It will be interesting to see how much opposition the government faces in trying to enact the bill. If all of the proposals are passed, it will inevitably lead to more prison sentences being imposed for longer periods at a time when the prison estate is already under immense pressure due to numbers and underfunding. Please contact our crime team for more information.

Sleep-in Workers and the Minimum Wage

In Royal Mencap Society v Tomlinson-Blake and another case, the Supreme Court has held that care workers who were required to sleep at, or near, their workplace, and be available to be called on during the night, were not entitled to the national minimum wage (“NMW”) for the entirety of their sleep-in shifts. During this time, the workers were not working but merely ‘available for work’, meaning that they were entitled to the NMW only for time during which they were awake for the purpose of working.

This case puts to an end a long-held belief that sleep-in shifts could qualify for the NMW following British Nursing Association v Inland Revenue, where the Court of Appeal upheld an employment tribunal’s finding that employees were working throughout their night shifts even during the periods when they were expected to be sleeping.

This case will come as a relief to employers in the care sector, but will be a disappointment to unions who have been campaigning for improved pay and conditions in this already low-paid sector.

Shielding to be Paused

Shielding is to be paused in England and Wales with effect from 1 April 2021.

The clinically extremely vulnerable were last advised to shield in England from 5 January 2021, following the imposition of the current national lockdown. The Department of Health and Social Care has now published a notification letter for that group to the effect that from 1 April, they will no longer be advised to shield and will not be eligible for statutory sick pay on the basis of being advised to shield. It states: “Everyone is currently advised to work from home where possible. If you cannot work from home, you should go to work.” The letter also notes that employers are required to take steps to reduce the risk of exposure to Covid-19 in the workplace.

At the time of writing, the shielding guidance in England states that it was updated on 18 March 2021 but does not yet reflect the latest position.

The Welsh Government has also confirmed that shielding measures for the clinically extremely vulnerable will be paused in Wales from the same date. That group was last advised to shield from 22 December 2020.

The shielding guidance in Wales was also last updated on 18 March, and refers to this anticipated change. It confirms that, from 1 April: the clinically extremely vulnerable are to go to work if they cannot work from home, as long as the business is Covid-secure; that the guidance will be updated further on 31 March; and that a new letter will be sent to the clinically extremely vulnerable in Wales in the coming weeks.

For advice on any employment-related issues arising in connection with Covid-19, please contact me on 01952 211010 or email john.merry@lblaw.co.uk.

False Claims Made by Local Maternity Units Mean Millions to Be Repaid in NHS Funds

A number of trusts located throughout the UK have been forced to repay money granted to them following incorrect data being provided in self-assessments of their own maternity units.

Lanyon Bowdler acts on behalf of a significant number of families affected by failings in maternity services at the Shrewsbury and Telford Hospital NHS Trust. We have seen concerning events that took place in the 1980s repeat themselves in the 2020s, showing that lessons do not seem to have been learnt. The Shrewsbury and Telford Hospital NHS Trust was one of the trusts highlighted as being forced to repay money, with the amount to be repaid by the trust totalling £953,000.

An article by The Independent states that a further six hospital trusts across the UK were also forced to repay money given, with the largest sum paid back by University Hospitals Birmingham. Following an internal review this trust repaid a total of £3 million.

NHS trusts are supposed to meet 10 safety actions to include ensuring systems are in place to review deaths, monitor women and plan staffing levels. The trusts should also report incidents to the Healthcare Safety Investigation Branch, which investigates maternity incidents within the NHS.

News of a number of trusts falsifying figures will not assist in restoring public faith in the NHS maternity services, particularly after an independent inquiry, leaked in 2019, found that more than 40 babies died due to poor care at the Shrewsbury and Telford Hospital NHS Trust and that an ongoing independent review by Donna Ockenden is now looking into 1,862 cases of possible concern.

Families affected question where the grants of the original sums of money ended up being spent, particularly with reports indicating that some trusts exhibited unsafe cultures and parents had expressed concerns over staffing levels. Criminal prosecution is being contemplated against two trusts given that deaths had occurred in their respective maternity units.

It is worth noting that out of the 115 NHS trusts that had self-declared themselves to meet the necessary safety actions, only 14 trusts failed on at least one measure. The response of NHS Resolution noted that they recognised poor governance which required further action. The chief executive of each trust is expected to sign off all declarations of individual maternity units meeting standards, so questions will be asked whether the misreporting has originated from the highest level.

This news coming to light will clearly cause worry for pregnant women in the local communities affected. Independent inquiries seem to be needed more than ever, particularly where babies and their mothers are suffering avoidable injury whilst attending these hospitals. 60% of all clinical negligence claims against the NHS between 2018 and 2019 involved maternity services.

Lanyon Bowdler has vast experience in maternal and birth injury claims and has a dedicated team dealing with enquiries and potential claims arising from the Shrewsbury and Telford Hospital NHS Trust maternity scandal. If you, or someone you know, has experienced possible negligent prenatal or postnatal care, or something has gone wrong during the labour period, please contact our team who will be able to assist with your enquiry.

Increases to Statutory Payments and Limits – April 2021

1 April: National Minimum Wage

From 1 April 2021, the National Living Wage will increase from £8.72 to £8.91 an hour.

The National Living Wage currently applies to workers aged 25 and over (excluding those in the first year of an apprenticeship). However, it will be extended to 23 and 24-year-olds from 1 April.

National Minimum Wage rates for those under the age of 23 and first year apprentices will also increase as follows:

  • Workers aged 21 to 22: £8.36 (up from £8.20)

  • Workers aged 18 to 20: £6.56 (up from £6.45)

  • Workers aged 16 to 17: £4.62 (up from £4.55)

  • Apprentices in their first year: £4.30 (up from £4.15)

Agricultural Minimum Wage in Wales

The Welsh government has yet to announce the agricultural minimum wage rates that will apply in Wales from 1 April.

4 April: Family-related payments

From 4 April, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay will increase from £151.20 to £151.97 per week (or, if lower, 90% of an employee’s average weekly earnings).

6 April: Statutory Sick Pay (SSP)

From 6 April, SSP also increases from £95.85 to £96.35 per week.

6 April: Compensation limits

For dismissals with an effective date of termination on or after 6 April, the cap on the value of a week’s pay for certain statutory purposes, such as calculating statutory redundancy pay and basic awards of compensation, increases from £538.00 to £544.00.

The maximum compensatory award for unfair dismissals will increase from the higher of 52 weeks’ normal pay and £88,519.00 to the higher of 52 weeks’ normal pay and £89,493.00.

Statutory guarantee pay

Although somewhat overshadowed by entitlements under the Coronavirus Job Retention Scheme, during periods of lay-off or short-time working an employee may be entitled to a statutory guarantee payment, which is calculated by multiplying the number of normal working hours on the workless day by the guaranteed hourly rate. The maximum guarantee payment was set at £30.00 per day (subject to a maximum of five days or £150 in any three months) from 6 April 2020. There will be no increase in that this April.

A Look at Prosthetics

Prosthetic limbs have an important role to play in enabling amputees to retain independence and live rewarding lives. However, although they have been around since ancient times, their designs have, until relatively recently, been limited to those which are passive and purely cosmetic, or those which have some articulation to assist with everyday activities, such as walking or carrying, but whose functions are somewhat limited.

It has only been with recent advancements in technology and the availability of modern materials, such as carbon fibre, that greater levels of comfort and sophistication have become possible and now prosthetics are increasingly complex and tailored to meet the individual needs of the wearer, who may have different prostheses for different purposes e.g. the flexible running blades used by athletes. The development of 3D printing has further aided the speed of progress, enabling complex, lightweight limbs to be manufactured relatively cheaply. Limbs for children are now available in a variety of colours and designs, even super-hero themed, should you wish!

Although prosthetic limbs utilising socket and harness and cable systems to provide the wearer with control over the prosthetic attachment are still commonplace, development in surgical approaches to prosthetics is also adding to the choices available to amputees. Osseointegration is one of these. It provides a titanium connection point surgically fitted into the bone of a residual limb so that prosthetic attachments can be connected. This is reported to give patients a more natural feel to the movements they make when using their prosthesis.

Understandably, effectively mimicking the movements of natural limbs has long been the focus of prosthetic development, with some success. For example, battery powered ‘bionic’ prosthetic hands have been developed, which use myoelectric sensors fitted to the muscles in the residual limb to sense impulses produced through muscle contraction to control the prosthetic. The improvement in control and dexterity afforded by this type of prosthesis is impressive, with the user safely able to handle even fragile objects using the hands.

A recent Sky News story reported on new research in America, which is expanding on this idea of utilising residual muscles to control prosthetic limbs. Surgically re-activating muscle pairs that control joints, such as ankles and elbows (which are typically severed during amputation procedures), enabled patients in the study to obtain increased precision in the control of their prosthesis, in part because it afforded them a sense of where their missing limb should be, and therefore where their prosthetic limb was.

What Next?

Well, although still under development, researchers have already successfully produced prosthetics, which can be controlled by the user’s thoughts and which provide the wearer with a sense of feedback - of touch. Although it may be some time before these become mainstream, there is cause for optimism regarding the speed of development of such complex prosthetics and the range of prosthetic options available to amputees.

Sadly, it is not uncommon in the field of clinical negligence law to encounter individuals who have suffered amputations as a consequence of the negligent treatment they have received. Typically, but not exclusively, this occurs in diabetic patients, cancer patients and those who have developed sepsis. Adjusting to life with an amputation impacts upon physical and mental wellbeing, can affect relationships and ability to work and increases everyday living costs. An amputee may need home modifications to enable them to live independently, a specially-adapted vehicle and other mobility aids to assist them, and will very likely continue to need the input of medical specialists and therapists throughout their life.

At Lanyon Bowdler, we are familiar with the problems individuals face as a result of such injuries and are able to assist, not just with making a clinical negligence claim for compensation, but in helping to identify and locate support services and products which will make life a little bit easier in future. Please contact our clinical negligence team for more information.

Consultant Gynaecologist under Review for Allegedly Causing Harm to Hundreds of Female Patients

A former specialist in obstetrics and gynaecology, Dr Daniel Hay, is currently under investigation for treatment he provided at the Royal Derby Hospital and Ripley Hospital between April 2017 and June 2018, which resulted in many of his patients experiencing ‘unnecessary harm’.

Concerns Raised

Owing to concerns raised by his former colleagues in late 2018 an initial review into the treatment of 58 women was commenced. This was later widened and 382 women have now been identified as having potentially been affected.

The review encompasses major surgical treatment such as hysterectomies as well as minor surgical treatment and outpatient treatment carried out by Dr Hay within the relevant period.

Intermediary Findings of the Review

The University Hospitals of Derby and Burton NHS Foundation Trust, who are conducting the review in conjunction with NHS England, has found instances of women not counselled appropriately as to alternative non-surgical options to hysterectomies and also instances where treatment ‘fell significantly below’ standards resulting in:

  • Burns;

  • Temporary paralysis;

  • Infected wounds;

  • Uncontrolled and abnormal bleeding problems;

  • Significant abdominal pain, and

  • Severe mental health issues.

Dr Hay has since retired from the trust. The full anonymised report is due to be published at a later date, which is yet to be announced.

Other Options

Sadly where patients have uterine or ovarian cancer major gynaecological surgery such as a hysterectomy is often unavoidable, but with diagnoses, such as uterine fibroids and endometriosis, there may be other ways of treating or dealing with these problems. The treating doctor should discuss the different options available and their side effects with the patient in order to allow them to make an informed decision.

Pain and Recovery Times

If surgery is a necessity or the patient has elected to proceed down this route then it is important to note that, whilst some level of pain and discomfort is considered normal following major abdominal or pelvic surgery, this should be capable of being controlled by painkillers.

Recovery times can be six to eight weeks after an abdominal hysterectomy but are often shorter following a vaginal or laparoscopy hysterectomy. Many of Dr Hay’s patients experienced continuous pain and, in some cases, worsening symptoms beyond this time frame.

Clinical Negligence Claims

Not all complications from surgery provide grounds for a legal claim, but it is important to be aware that these may have arisen due to potential failings on the part of the doctor.

Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has extensive experience of dealing with gynaecological cases. If you have concerns about gynaecological care you have received, our team is happy to discuss the matter with you and guide you through the process sensitively. Please contact us.

Latest News

08 May 2016

A Mother Talks About the Challenges Faced Due to Cerebral Palsy Following a Birth Injury

Her daughter from Shropshire was diagnosed with Cerebral Palsy following a birth injury, Lanyon Bowdler are working w...

Read More