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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 (18 May 2012)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/641.html
Cite as: [2012] IRLR 661, [2012] EWCA Civ 641, [2012] WLR(D) 152, [2012] Med LR 695, [2013] ICR 270, [2012] 4 All ER 359, (2012) 128 BMLR 93, 128 BMLR 93
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ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
TIMOTHY STRAKER QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE ELIAS
and
SIR STEPHEN SEDLEY
____________________
| RAJ KUMAR MATTU |
Appellant |
|
| - and - |
||
| THE UNIVERSITY HOSPITALS OF COVENTRY AND WARWICKSHIRE NHS TRUST |
Respondent |
____________________
John Cavanagh QC and Jennifer Jones (instructed by Harrison Clark Solicitors) for the Respondent
Hearing dates: 26th and 27th March 2012
____________________
Crown Copyright ©
- This is the appeal of Dr Raj Kumar Mattu against the order dated 1 August 2011, of Mr Timothy Straker QC, sitting as a Deputy High Court Judge, dismissing his claim for a declaration that his dismissal by the Defendant on 30 November 2010 was ineffective and consequential injunctive relief and damages. The appeal raises an important and fundamental issue as to the application of Article 6 of the European Convention on Human Rights to disciplinary proceedings of public authority employers.
- The Trust's disciplinary proceedings were modelled on Maintaining High Professional Standards in the Modern NHS, a document issued by the Department of Health that replaced the earlier disciplinary procedures continued in circular HC(90)9, and which is universally referred to as "MHPS". Page 4 of MHPS set out the key changes from HC(90)9. So far as is relevant, they were:
- All NHS bodies in England were required by direction of the Secretary of State under statute to implement the framework within their local procedures. It is not suggested that the Trust failed to do so or that its disciplinary procedures, set out in its "Procedure for Conduct and Capability Concerns in relation to Medical and Dental Staff" (the "Disciplinary Procedure") did not comply with MHPS.
- It is now common ground that the Disciplinary Procedure was incorporated into Dr Mattu's contract of employment. Section 3 of so far as relevant, is as follows;
- I can take the facts from the judgment below, the account in which has not been disputed.
- By an agreement made in writing on 3 February 1998. Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust ("the Trust"), as a consultant in non-invasive cardiology and general medicine.
- Dr Mattu, having specialised in cardiology, was appointed to the consultant post in 1998. Dr Mattu's contract of employment was described by the judge at paragraphs 16 and follows of his judgment. He said that Dr Mattu's post was entitled consultant. He was accountable for managerial purposes to the Chief Executive. Clause 3 of the agreement provided for the commitment given by Dr Mattu. His base headquarters were the Walsgrave Hospital and the Coventry and Warwickshire Hospital. A session commitment was identified and duties assigned for the purpose of providing health services under the National Health Service Acts. These were, as agreed by Dr Mattu, clinical services. However, his job description included a requirement for research.
- Dr Mattu entered into a separate agreement with Warwick University. It conferred an honorary post providing for research at Warwick University. Such an arrangement is commonplace in the National Health Service.
- In 2002 Dr Mattu was suspended from his post on disciplinary grounds. However, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. As a result of those disciplinary proceedings, by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.
- It was apparent by July 2007 that it would not be desirable for Dr Mattu immediately to return to clinical or professional duties. He required re-skilling, which has, as its purpose, enabling him to return to safe practice.
- Accordingly, re-skilling was arranged for Dr Mattu. In August 2008 he began a re-skilling programme at the Imperial College Health Care NHS Trust and at Royal Brompton and Harefield Foundation NHS Trust. However, there was disagreement as to its scope. Dr Mattu thought that his re-skilling should include, in addition to clinical re-skilling, an additional six months academic re-skilling connected to research, with the possibility that such six months be spent in the United States of America. He refused to sign the Trust's action plan, which did not make provision for academic re-skilling.
- On 15 July 2010, John Mockler, an HR consultant and former interim HR director of the Trust, produced a report on the allegations against Dr Mattu. His findings led to the disciplinary proceedings against Dr Mattu. It was Mr Mockler who presented the management case at the disciplinary hearing. Paragraphs 9.8 to 9.11 and 11.6 of his report were as follows:
- Paragraphs 14.9 to 14.11 are relevant:
- By letter dated 27 July 2010, Andrew Hardy, the Chief Executive of the Trust, informed Dr Mattu that there would be a disciplinary hearing in accordance with the Trust's Disciplinary Appeals Procedure, to be chaired by him, supported by Mr McMenemy, the Associate HR Director, to be held on 12 August 2010, to consider 3 allegations, namely:
- The disciplinary hearing was postponed on 6 occasions, until 16 November 2010. Dr Mattu sought a further postponement, on account of his health. Mr Hardy refused it. There was no objection by Dr Mattu to Mr Hardy before the hearings began, and no suggestion that an independent medically qualified person was required to consider the allegations with Mr Hardy. The hearing was held on that day and on 22 and 24 November 2010. Dr Mattu did not participate. Mr Hardy upheld the allegations for the reasons set out at length in his letter to Dr Mattu dated 30 November 2010. He decided that Dr Mattu had been guilty of gross misconduct and that he should be dismissed without notice. For the purposes of this appeal, the important findings of Mr Hardy relate to the first allegation. Mr Hardy stated:
- As he was entitled to do, Dr Mattu appealed to an Appeal Panel. The Panel was chaired by Mr Clive Wilkinson, the chairman of Heart of England NHS Foundation Trust. The other members were Dr Jag Ahluwalia, Medical Director of Cambridge University Hospitals NHS Foundation Trust and Mr Mike Jones, Director of Human Resources at University Hospitals Birmingham NHS Foundation Trust. None of them was employed by or had any involvement with the Trust. Nonetheless, Dr Mattu objected to each of them. The Panel held hearings on 9 and 13 May and 20 September 2011. Dr Mattu was represented by a barrister on 9 and 13 May; he represented himself on 20 September 2011, but was accompanied by a barrister.
- The grounds of appeal were fourfold:
- The Panel rejected each of these grounds, and gave their reasons for doing so in a letter from the Panel Chairman, Dr Clive Wilkinson, to Mr Mattu dated 30 September 2011. As to the first, the Panel stated:
- The Panel rejected the contention that Dr Mattu had been the victim of inequity in treatment. Their reasons for doing so are not relevant to the present appeal.
- The new evidence on which Dr Mattu relied consisted of a number of emails which he said showed that the evidence of Christine Watts, that Mr Hardy had accepted, was false or unreliable. The Panel gave Dr Mattu time to submit the new evidence. It consisted of 4 emails. The Panel said this:
- As to the contention that Mr Hardy's decision was unreasonable, the Panel stated:
- The Panel concluded:
- Before the judge, the following written agreement was made between the parties:
- It was contended on behalf of Dr Mattu:
- The judge held:
- Before us, Mr Hendy QC, for Dr Mattu, submitted that the finding of the judge on the classification of the first allegation against him, and each of the judge's other findings was wrong. In his oral submissions he did not seek to challenge the finding of the judge as to the classification of the second and third allegations, and I am clear that the judge was correct as to their classification for the reason he gave in paragraph 61 of his judgment: they had nothing to do with clinical matters. Mr Cavanagh QC, for the Trust, submitted that each of the judge's findings challenged before us was right for the reasons he gave.
- The judge's reasons for his finding in relation to the first allegation are in paragraphs 46 to 66 of his judgment. It seems to me that the most important of his reasons are:
- In my judgment, it is inappropriate, if at all possible, to construe paragraph 3.2 of the Disciplinary Procedure as if it were a statute. It is written in discursive terms. A practical, purposive interpretation is appropriate, from which a sensible and hopefully clear criterion for determining in advance of a disciplinary hearing whether an outside medically qualified panel member is required. In this connection, I understand it to be common ground that not every allegation of misconduct against a doctor is to be regarded as one of professional misconduct.
- The fact that it is a doctor who is alleged to have committed the misconduct is insufficient. If it were otherwise, all misconduct allegations against a doctor would be of professional misconduct. Secondly, the allegation must concern his employment by his employer. Misconduct outside the scope of his employment, for example shoplifting, may give rise to disciplinary proceedings before the General Medical Council, but in the absence of an applicable express or implied term of the contract of employment will not of itself be a breach of that contract.
- In my judgment, the basis of the distinction between professional misconduct and non-professional misconduct under MHPS and the Disciplinary Procedure is the requirement for an independent medically qualified panel member. If there is no utility in having a medically qualified person on the panel, it is difficult to see that the allegation is of professional misconduct so as to require his or her ex hypothesi unnecessary participation.
- It is, therefore, necessary to analyse and to classify the allegations in question. As mentioned above, I am clear that neither allegations (2) nor allegation (3) was of professional misconduct. Allegation (1) concerned, in essence, a refusal by Dr Mattu to return to clinical work unless and until the Trust agreed to his academic re-skilling. There was no issue as to his clinical re-skilling: that was about 80 per cent complete by November 2010. Once completed, there would be no question as to his clinical competence, to enable him to work as a consultant cardiologist. Thus, the primary issue was whether the requirement that he return to work without academic re-skilling was one the Trust was reasonably entitled to make under its contract with Dr Mattu. This issue did not involve any medical skill or expertise for its resolution: it was an employment, a managerial, issue. There was also an issue as to whether Dr Mattu's conduct in relation to this issue showed him to be unmanageable. That too was not an issue in relation to which a medical qualification was relevant.
- I am fortified in this conclusion by what was said on behalf of Dr Mattu by his counsel when he appeared before the Interim Orders Panel of the GMC. He said:
- This case differs from Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 [2003] UKHL 27, which in any event was decided under the procedure contained in HC(90)9. In Skidmore, the allegation against the doctor was that he had deliberately misled a patient and her family about what had happened in an operation he had carried out. That allegation related to his clinical conduct towards the patient and her family, which is not limited to the carrying out of the operation, but included explaining to the patient what had occurred. Hence the allegation was of professional misconduct. In the present case, there was no allegation as to Dr Mattu's clinical conduct.
- I would add that I should be slow to interfere with the decision of the Appeal Panel on the classification issue. Its members were all independent of the Trust, and highly qualified. They concluded that the allegations against Dr Mattu raised no clinical, i.e., medical issue. I do not think that this was not a sensible way to approach the question. As mentioned above, Dr Mattu objected to the constitution of the Panel, on the ground that its members all worked in the same geographical region as the Trust and, he contended, they therefore lacked independence. Mr Hendy did not pursue this contention in his oral submissions. I reject it.
- The issue under this head is whether Mr Hardy's refusals of an adjournment on 15 and 16 November 2010 were in breach of the Trust's implied obligation of fairness in the conduct of its disciplinary procedures.
- The judge addressed this issue at length at paragraphs 67 to 78 of his judgment. She set out the lengthy and detailed reasons given by Mr Hardy in his letter of 15 November 2010 to Mr McKivett, who was representing Dr Mattu. I do not want to lengthen an already long judgment by doing the same, particularly since the judgment is publicly available at http://www.bailii.org/ew/cases/EWHC/QB/2011/2068.html. The key points made by Mr Hardy were:
- The judge made a number of additional points. The Trust had been anxious for an occupational health professional to see Dr Mattu. He had refused. Mr Hardy was a fair and honest person, but even on 16 November he was not told where Dr Mattu was.
- Before us, Mr Hendy relied in particular on the medical reports that had been sent so as to be received by Mr Hardy on 17 November, i.e., after the disciplinary hearing had begun. The first was a letter dated 15 November 2010 from Dr Buckley, Dr Mattu's GP. It is clear that the judge regarded him as partial. He said:
- The report enclosed with Dr Buckley's letter was from Professor Athol Wells, a respiratory physician who was treating Dr Mattu. While it stated that he was unwell, it did not state that he was too unwell to attend the disciplinary hearing. What Professor Wells said was:
- Before the judge, Mr Cavanagh submitted that Mr Hardy's decision was a rational response to a difficult situation. Like the judge, I accept that description. I do not think that the obligation of fairness required Mr Hardy, on the information before him, to adjourn the proceedings for a seventh time, into an uncertain future, and in circumstances in which it was appropriate for the proceedings to be determined expeditiously.
- It follows that I would reject this ground of appeal.
- This is one of those cases in which both parties make submissions that at first sight might appear to be contrary to their interests. For Dr Mattu, Mr Hendy submitted that the Court has no jurisdiction to determine what was Dr Mattu's conduct that led to his dismissal, or whether his conduct justified his dismissal. For the Trust, Mr Cavanagh, on the other hand, submitted that the Court has full jurisdiction to consider whether the Trust was or was not entitled to dismiss him under the contract of employment between him and the Trust: in other words, to determine what was his conduct in question (to the extent that the primary facts are in dispute), and whether his conduct so found or admitted entitled the Trust summarily to dismiss him.
- The motives for these apparently perverse submissions are however clear. For Dr Mattu, it was submitted that his dismissal had been a determination of his civil rights that did not comply with his rights under Article 6, because those rights had been determined by a tribunal that was neither independent nor impartial, and the determination had not been attended by the procedural safeguards necessary for a fair hearing. He accepted that in order to determine whether there had been a breach of Article 6, it is necessary to consider the entirety of the applicable legal procedures, but submitted that by reason of the limitations on the powers of the Court for which he contended its jurisdiction was inadequate to render the Trust's disciplinary procedure as a whole Convention compliant.
- The Trust's submissions are that these two fundamental submissions of Mr Hendy do not represent the law.
- There are essentially two important questions to be considered under this head:
- Mr Cavanagh suggested that Mr Hardy, who had not been involved in the matters alleged against Dr Mattu, was an independent and impartial tribunal. I reject this contention. Mr Hardy was the person who decided that Dr Mattu should be summarily dismissed. He was the Chief Executive of the Trust, and not independent of it or impartial as to its interests as against those of Dr Mattu.
- I would also accept that if, as is common ground, the Appeal Panel could not make an independent examination of the facts, but had to take them as found by Mr Hardy, in any case in which the primary facts were in issue the independence and impartiality of its members would not of itself render the disciplinary process compliant with Article 6, if it was engaged, bearing in mind the supervisory jurisdiction of the Court. It is not clear to me that there were in fact any significant primary facts in dispute before the Appeal Panel, but as will be seen it is unnecessary to consider this further.
- I therefore turn to consider the first of the questions identified in paragraph 45 above. It is however necessary to emphasise the potential significance of Mr Hendy's submission. If Article 6 is engaged by a public employer's contractual disciplinary procedures (because the employer is a public authority within the meaning of the Human Rights Act 1998), any decision to dismiss an employee must be taken by a tribunal compliant with Article 6, with procedures, which are likely to include the right to legal representation, that are implicit in Article 6. Furthermore, the application of Article 6 is not confined to doctors and similar professionals. The Convention, and in particular Article 6, is blind to social class and social, professional and economic status, as is demonstrated by the judgments at all levels in R (Wright) v Secretary of State for Health [2009] 1 AC 739 [2009] UKHL 3. Indeed, for the low paid, such as the care workers who were the subject of those judgments, the protection of the Convention may be all the more important. It follows, therefore, that if Mr Hendy is right, the procedure, viewed as a whole, for dismissing any employee may have to comply with Article 6. Furthermore, it is not only public authority employers who must comply with Article 6. On the basis of the principle laid down by the European Court of Human Rights in Wilson v UK (2002) 35 EHRR 20 that Member States have a positive obligation to secure the enjoyment of Convention rights under their domestic law, the UK Government may be obliged to enact legislation requiring private employers to comply with Article 6 when considering whether to dismiss their employees.
- If Article 6 is applicable to a decision by an employer to dismiss an employee, then, unless the decision is made by an independent and independent tribunal, it will not comply with its requirements. Thus the real question is: does a decision by an employer whether to dismiss an employee under a contract of employment determine a civil right of the employee within the meaning of Article 6? In the remainder of my judgment, I shall refer to civil rights within the meaning of Article 6 as civil rights simpliciter.
- The right to carry on one's profession is undoubtedly a civil right. Hence a decision that may result in a legal prohibition on the carrying on of a profession engages Article 6. The leading Strasbourg judgment is Le Compte, Van Leuven and De Meyere v Belgium (Application 6878/75) (1982) 4 EHRR 1, in which the Court held that the applicants' suspensions from practising medicine engaged Article 6.
- It is essential, in my judgment, to emphasise that the decision to suspend the applicants in that case was not the exercise of a contractual right under a contract of employment. The decision in issue was made by the Belgian Ordre des Medecins, the equivalent of the General Medical Council. The applicable Belgian decree provided that "in order to practise medicine in Belgium, every medical practitioner must be entered on the register of the Ordre". The result of the decision was that the applicant was under a legal prohibition, for the duration of the suspension, of their practice of their profession. It was in this sense that their civil right to practise their profession was determined. There was not a simple termination of a contract of employment, leaving the applicants legally free to work as doctors for another employer, or as self-employed doctors. As the Court stated:
- I would emphasise the Court's reference to "the right to continue to exercise the medical profession". The decision of the Trust to dismiss Dr Mattu did not affect his right to practise his profession. He could lawfully do so either in private practice or as an employee of another NHS Trust or of a private hospital. His civil right, lawfully to practise his profession, was not engaged.
- Mr Hendy submitted that, although Dr Mattu's legal right to work as a doctor was not affected by his dismissal, in practice his right was affected because the practical consequence of his dismissal is that he cannot find employment with another NHS Trust. I do not think that this contention was made out on the evidence: Dr Mattu is a consultant who is able to practise as a self-employed doctor, from Harley Street or elsewhere, or in a private hospital. There is no evidence that he has been refused employment by any other NHS Trust. Before the Interim Orders Panel of the GMC he resisted the suspension of his registration on the ground that he wished to practise as a doctor, and implicitly that he would be able to do so. Perhaps more importantly, the judge did not find that he could not return to practice.
- However, in any event in my judgment the question of the applicability of Article 6 cannot depend on whether in fact a doctor or other professional can obtain work in his field as a result of his dismissal by an employer. Article 6 is concerned with legal rights and obligations. Its application cannot vary depending on the particular facts of each case. If that were so, Article 6 would not apply to the dismissal of an eminent consultant, who would be snapped up by any other NHS Trust, or who could engage in private practice, but would apply to a junior doctor at a time of a surplus of doctors of his seniority to the vacancies available. What about a similar junior doctor facing the same allegation at a time when there is a shortage of doctors at his level, and he could easily find alternative employment? Must his employer investigate his employment prospects in order to decide whether Article 6 is engaged? As Sedley LJ mentioned in the course of argument, during the course of a disciplinary procedure relating to an allegation of apparently minor importance against a doctor, such as bad time-keeping, it might emerge that his bad time keeping was a symptom of a serious drug dependency, so that dismissal would become a potential outcome. Would the disciplinary procedure change from not engaging Article 6 to engaging Article 6 when that evidence emerged? What is the test for deciding that the new evidence brings Article 6 into play? Is the converse true? In the course of a disciplinary hearing in which serious allegations are made, it becomes apparent/arguable/possible that they are not made out, although some misconduct, not amounting to gross misconduct, remains in issue. Does Article 6 cease to apply?
- I would respectfully agree with what was said by Lord MacKay of Drumadoon in Tehrani v the United Kingdom Central Council for Nursing Midwifery & Health Visiting [2001] SC 581, [2001] IRLR 208:
- In R (Thompson) v Law Society [2004] EWCA Civ 167 [2004] 1 WLR 2522, Clarke LJ, giving a judgment with which the other members of the Court of Appeal agreed, held that reprimands imposed by the Office for the Supervision of Solicitors did not amount to a determination of a civil right of the solicitor concerned. He said:
- It may be that if there has been no determination of his civil rights, a claimant cannot complain of a breach of Article 6. It does not follow that at the stage when the outcome of the proceedings is unknown, but they may result in a determination of his civil rights, he is not entitled to the benefit of Article 6.
- The principal authority relied upon in support of the submission that Article 6 applies to a decision that has a practical, but not a legal, effect on employability in one's profession is Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789 [2010] ICR 101. In Kulkarni it was held that the disciplinary procedure had been unlawful because the doctor had not been permitted the legal representation to which he was contractually entitled. What was said by Smith LJ on the applicability of Article 6 was expressly obiter. She referred to the judgment of the European Court of Human Rights in Le Compte and said:
- Leaving aside the special position of trainee doctors to which Smith LJ referred, the practical difficulties created by these obiter remarks were remarked upon by Swift J in Hameed v Central Manchester University Hospitals NHS Foundation Trust [2010] EWHC 2009 (QB). She said:
- In R (Puri) v Bradford Teaching Hospital NHS Trust [2011] IRLR 582 [2011] EWHC 970 (Admin), Blair J was similarly faced with the contention that Article 6 applied to the disciplinary procedure against the doctor. He referred to the judgments in Kulkarni and Hameed, cited , at paragraph 28 what Smith LJ had said in the former at paragraph 89, and said:
- I refer to this because the effect of Mr Hendy's submission is that in order to decide whether Article 6 applies both employer and employee must investigate the doctor's prospects of obtaining alternative employment; and the employer's conclusions on this question, which are not issues as to the conduct of the doctor in his employment, are liable to be challenged and to be the subject of evidence in subsequent legal proceedings. This is an invitation to uncertainty and costs which would be better deployed, in a case such as the present, in caring for patients. With respect to the Court of Appeal in Kulkarni, I do not think it is right. In my judgment, the obiter remarks in that case do not represent the law.
- The judgment of Lord Dyson, with whom Lord Walker and Lord Hope agreed, in R (G) v Governors of X School [2011] ICR 1033 [2011] UKSC 30, must be considered. The case concerned disciplinary proceedings involving a teaching assistant at a primary school, who was accused of forming an inappropriate, apparently sexual, relationship with a 15-year-old boy undergoing work experience at the school. The disciplinary proceedings resulted in his dismissal. They did not comply with the requirements of Article 6, because the teaching assistant had been refused legal representation. He accepted that, viewed in isolation, the disciplinary proceedings had not determined a civil right, because it had only determined a contractual right. However, he contended that Article 6 was engaged because of the effect of the disciplinary finding on proceedings of the Independent Safeguarding Authority ("ISA"), which would have power to disqualify him from working as a teaching assistant or with children generally. Lord Dyson said:
- Lord Dyson accepted the formulation of Laws LJ in the Court of Appeal. He said:
- Lord Dyson concluded that, because the ISA was "required to make its own findings of fact and bring its own independent judgment to bear as to their seriousness and significance before deciding whether it is appropriate to place the person on the barred list", the disciplinary proceedings in the school did not have a sufficiently strong influence on ISA proceedings to render Article 6 applicable to the former, even though the ISA would not receive oral evidence.
- What is striking in the judgments of the Supreme Court in R (G) v Governors of X School is that it was not suggested that Article 6 was engaged because a dismissal for the reason the teaching assistant was dismissed would render him in practice unemployable as a teaching assistant. Similarly, it was not suggested that the fact that the teaching assistant's reputation was damaged by the finding in the disciplinary proceedings, as surely it was, rendered Article 6 applicable. It is for these reasons that I do not think that this case assists Dr Mattu. To the contrary, the judgments in G confirm that the Trust's disciplinary decision, dismissing him under his contract of employment, did not itself determine any civil right of his: the Trust's disciplinary proceedings were proceedings A in Lord Dyson's formulation.
- On what proceedings (proceedings B in Lord Dyson's formulation) that could determine such a civil right could the result of the Trust's disciplinary proceedings have any influence? Not on the proceedings of the GMC. If there were an allegation of professional misconduct, its Fitness to Practise Panel would receive evidence, including oral evidence, and arrive at its own conclusions independent of any finding by the Trust. The only other proceedings that have been suggested are those of the Court in proceedings for wrongful dismissal. I turn to consider that question.
- I should however for completeness refer to Dr Mattu's right to bring proceedings for unfair dismissal before the Employment Tribunal. The Tribunal would make an independent determination of the question whether his dismissal was fair. His claim, if any, for damages for unfair dismissal would be determined by the Tribunal in proceedings to which Article 6 applies, but that has no bearing on the question whether the disciplinary proceedings themselves must comply with Article 6. The disciplinary proceedings of the Trust, and the decision summarily to dismiss him, may give rise to a civil right, namely the rights within the jurisdiction of the Tribunal and which may be decided by it, but they do not determine any such right.
- Dr Mattu's case depends on the contention that in proceedings for wrongful dismissal, i.e., dismissal in breach of his contract of employment, the Court has no power to determine the facts afresh.
- It is clear that an employer may by his contract of employment fetter his right to determine the contract by notice or summarily: see R v BBC ex p Lavelle [1983] ICR 99, Gunton v Richmond upon Thames LBC [1981] Ch 448, Janciuk v Winerite [1998] IRLR 63. It is a very different thing, however, to hold that in the absence of the clearest contractual provision (and assuming no applicable common law or statutory prohibition), an employee may be bound by his employer's decision as to whether or not he has been guilty of grave misconduct justifying his summary dismissal. There is no contractual term binding Dr Mattu to accept the finding of the Trust. In my judgment, there is no authority for the contention of Mr Hendy that Dr Mattu was so bound. I think that, as so often, the law was clearly and concisely stated by Lord Reid. In his ground-breaking judgment in Ridge v Baldwin [1964] AC 40, he said, at 65:
- Ridge v Baldwin itself was not a case of master and servant (or in today's language employer and employee): Mr Ridge was a chief constable holding a statutory office. Ms Shoesmith, the appellant in R (Shoesmith) v OFSTED [2011] ICR 1195 [2011] EWCA Civ 642 similarly held a statutory office. Dr Mattu did not: he was an employee of the Trust. His case falls within the first of Lord Reid's classes, and under his contract of employment. One cannot simply read over to contract cases concerning statutory office holders or those in which there are applicable statutory regulations. In R (London Fire and Emergency Planning Authority) v Secretary of State for Communities and Local Government [2007] EWHC 1176 (Admin) [2007] LGR 591, I said, at paragraph 49:
- Mr Hendy has cited a large number of authorities in support of his submission. They must be carefully considered. Most are concerned with the interpretation and effect of contractual provisions. It does not follow that the result would be the same in the absence of the contractual provision in question.
- Cases that are concerned with the exercise of contractual rights concerning the membership of clubs or voluntary associations or of companies, and the decisions of domestic tribunals are not in point unless the contract predicates the exercise of the power in question on an objective fact. Weinberger v Inglis [1919] AC 606 concerned the exercise by the Committee of the Stock Exchange of the contractual power to decline to re-elect members. The appellant was not deemed to be eligible for re-election because he was of German birth. The House of Lords held that the Committee had been entitled so to decide. The exercise of the power to refuse re-election did not depend on a finding that the plaintiff had committed any misconduct, indeed, none was suggested. That these cases turn on the terms of the contract entered into by the complainant was made clear by Scrutton LJ in Cookson v Harewood [1932] 2 KB 478:
- Perhaps the best authority from Dr Mattu's point of view is the decision of King's Bench Division in Diggle v Ogston Motor Co (1915) 84 LJKB 2165. The plaintiff had been employed by the defendants under a written contract "for one year, subject … to your carrying out your duties to the satisfaction of the directors …". He was dismissed. The jury found that the defendants were genuinely dissatisfied with his performance, but that they did not have good reason for dissatisfaction. It was held that they had been entitled to dismiss him. The case turned entirely on the terms of the contract of employment. It has no relevance to the present case.
- There are relatively few cases in which the Court has considered whether an employee was or was not lawfully summarily dismissed under his contract of employment. The reason is economic. If the employer was contractually entitled to terminate the employment on giving notice, the only damages that can normally be recovered are for the net loss of salary during the period of notice to which the employee was, on his case, entitled. An example in which the issue arose is Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67, in which Lord Maugham, giving the judgment of the Privy Council, said at 73 that:
- Mr Hendy relies on Dietman v Brent LBC [1988] ICR 842 "as a classic case where such inquiry into the facts as there was, was confined to ascertaining whether the admitted conduct amounted to gross misconduct warranting dismissal which excused the employer from exhausting the disciplinary procedure". However, it was because the conduct of the employee was undisputed that the only issue was whether it constituted gross misconduct. It does not follow that if the employee had disputed that she had been guilty of the acts and omissions alleged against her, the Court would not have determined whether or not those allegations were well-founded.
- For these reasons, I would hold that the disciplinary proceedings of the Trust did not engage Article 6. They did not determine any civil right of Dr Mattu. His dismissal was the exercise, or purported exercise, of a contractual right, not the determination of a civil right within the meaning of Article 6. It is the determination of the claimed right to redress for alleged breach of the contractual right (or the right to compensation for an alleged unfair dismissal) that engages Article 6.
- I add that I have read the judgment of Elias LJ, with which I entirely agree.
- In view of my conclusions on his other grounds, it is unnecessary to consider whether it would have been appropriate to grant Dr Mattu the relief he seeks. Given the obvious breakdown in relationships between him and the Trust, I would have been reluctant to do so.
- For the reasons I have set out above, I would dismiss Dr Mattu's appeal.
- I gratefully adopt the analysis of the facts and the relevant contractual provisions set out in the judgment of Stanley Burnton LJ. I agree that the appeal should be dismissed largely for the reasons he has given. I entirely agree with his analysis of the adjournment issue; but I wish to explain why I prefer the analysis of Stanley Burnton LJ to that of Sir Stephen Sedley on the classification issue, and to add some observations on the application of Article 6.
- The question here is whether the disciplinary hearing involved issues of professional conduct. If it did, then under clause 3.2 of the Procedure for Conduct and Capability Concerns, reproduced by Stanley Burnton LJ at paragraph 4 above, the Trust was obliged to have a medically qualified person on the disciplinary panel. The failure so to constitute the panel would be a breach of contract. I do not accept the submission of Mr Cavanagh that a term in the contract which provides that "it is for the Trust to decide upon the most appropriate way forward" makes the Trust the final arbiter of which procedure should be adopted, subject at least to bad faith or the absence of reasonable grounds for the decision. A similar argument was unsuccessfully advanced before the House of Lords in Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27; [2003] ICR 721 when the relevant clause in earlier disciplinary provisions stated that "it is for the authority to decide under which category a case falls". Lord Steyn, with whose judgment Lords Bingham, Clyde, Hutton and Scott agreed, held that this language was insufficient to confer the final decision on classification to the authority, thereby excluding the role of the court. In my judgment that principle applies equally here, and I respectfully disagree on this point with the analysis of Andrew Smith J in Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB).
- Both Sir Stephen Sedley and Stanley Burnton LJ start from the premise that the definition of professional conduct is inextricably linked with the procedure for determining conduct issues: if there is some purpose in having a medically qualified person on the disciplinary panel because that person can provide a valuable professional insight into a relevant issue before the disciplinary body, the proceedings should be interpreted as involving an issue of professional conduct. As Keene LJ put it in the case of Skidmore v Dartford and Gravesham NHS Trust [2002] ICR 403, para 21, in language subsequently approved by Lord Steyn in the House of Lords ([2003] ICR 721) a relevant factor will be whether the allegations raise issues "which, at least to a degree, needed medical experience or expertise for their determination". That observation was made in the context of the old rules contained in Circular HC (90)9, but in my judgment, it is equally applicable to these procedures. Accordingly, for reasons given by Sir Stephen, I would reject the submission of Mr Cavanagh QC, counsel for the Trust, that professional misconduct should always and necessarily be equated with clinical misconduct, although no doubt in the vast majority of cases it will be.
- So the issue is whether the expertise and experience of a qualified medical member were required to deal with the issue in dispute. Stanley Burnton LJ concludes that they were not. I agree with his conclusion on allegations 2 and 3. He identifies the issue in allegation 1 as being whether the Trust was entitled to require Dr Mattu to return to clinical work without first undergoing academic re-skilling. This was not a question for a medical expert since its resolution involved no medical insight. Stanley Burnton LJ concludes that this is an employment or managerial issue which involves no question of professional conduct; nor does the related allegation, that he was unmanageable.
- Sir Stephen Sedley, by contrast, identifies the issue before the disciplinary panel in a different way. He asserts that the duty to carry out research was an integral part of Dr Mattu's contractual duties which was interlinked with his clinical duties. As I read his judgment, he finds that an issue of professional conduct arises in two potentially distinct ways. First, there was a real question whether Dr Mattu could be expected to return to clinical duties without first completing a period of academic re-skilling. A qualified doctor would have been in a position to advise on the relevance of Dr Mattu's research to his consultancy practice.
- A second and related reason is that it was plainly part of Dr Mattu's duties to perform academic work, since he had three research sessions a week stipulated in his contract, albeit that the research contract was an honorary contract formally entered into with Warwick University rather than the Trust. Whether Dr Mattu was acting reasonably in refusing to accept the action plan and the direction which formed the key part of it depended upon whether he could reasonably insist upon carrying out the full range of his contractual duties. This again was not a matter which a lay person could sensibly determine without professional assistance from a qualified doctor.
- If there were an issue as to whether academic re-skilling was a necessary requirement to the proper performance of clinical duties, I would respectfully see much force in Sir Stephen's analysis. But that is not in issue here. Dr Mattu did not suggest that he needed such re-skilling in order to carry out his clinical duties, and indeed that would have been an impossible argument to advance since not all consultants will combine research with their clinical duties. Rather, Dr Mattu contended that research was an essential and significant part of his contractual duties and that it was reasonable for him to refuse to return to work until he was ready to perform all aspects of the contract, thereby restoring his "career, reputation and professional status". That focuses upon the second reason why Sir Stephen concludes that a professionally qualified medic is required.
- However, even assuming in Dr Mattu's favour that it was necessary to undertake academic re-skilling in order properly to be able to carry out his research duties, the question is whether the Trust was acting reasonably - or more accurately, whether it was giving a reasonable and lawful instruction - to say that he should first undertake clinical duties and that academic re-skilling could come later. That is a question about the scope of the contract and whether it was reasonable for the Trust to insist that he return to perform the major part of his duties, namely clinical duties, even if he was not in a position to carry out the full range of his contractual obligations. (This assumes in his favour that the academic duties performed under a contract with Warwick University can in substance be treated as part of his contractual obligations to the Trust). In my view, the refusal to obey that direction involves no issue of professional conduct and a qualified doctor would have no experience or expertise relevant to assessing the reasonableness either of the order or of Dr Mattu's response to it.
- I would add that, like Stanley Burnton LJ, I am reinforced in my conclusion by the consideration that none of the eminent members of the appeal panel who looked at this issue, including Doctor Ahluwalia, saw it as a case involving professional conduct. I too would not readily interfere with the conclusion of an experienced and independent panel on an issue of classification.
- It is also of some relevance that Dr Mattu himself could have raised the classification of the issue as a grievance but he did not do so (although he did raise grievances with respect to various other matters). It has not been suggested that this failure to pursue a grievance constitutes acquiescence in the classification decision, or that it in some way estops Dr Mattu from now seeking to assert that the decision was wrong, but the fact that Dr Mattu did not at the time take issue with the analysis provides some comfort for the conclusion I have reached.
- Article 6 is engaged where there is a determination of the appellant's civil rights. The French text refers to "contestations sur ses droits et obligations de caractere civil". There is no equivalent to "contestations" - which means "dispute" - in the English text, but it has now been firmly established in a line of cases that the Article 6 guarantees are only applicable if there is a dispute between the parties relating to civil rights or arguable civil rights: see e.g. Le Compte v Belgium (1983) 5 EHRR 533. Article 6 lays down procedural guarantees for the determination of such rights, two of the most important of which are that the decision must be taken by an independent and impartial tribunal, and that the parties are entitled to legal representation.
- It is important to emphasise that article 6 does not create or mould the substantive content of civil rights or obligations as the ECtHR confirmed in Roche v United Kingdom (2005) 20 BHRC 99 para 117:
- Dr Mattu submitted that the article applied to the Trust's decision to dismiss and was not complied with in a material respect. His argument can be encapsulated in the following steps:
- It is important to emphasise that Mr Hendy is not seeking to rely upon the principle enunciated by the Supreme Court in R(G) v Governors of X School [2011] ICR 1033. This principle, with its roots in the decision of the ECtHR in Ringeisen v Austria (No.1) (1971) 1 EHRR 455, can be stated as follows: where proceedings A (in which an individual's civil rights or obligations are not being explicitly determined) will have a substantial influence or effect on the determination in proceedings B (in which his civil rights or obligations are being explicitly determined) then Article 6 will apply to proceedings A as well as to proceedings B. In those circumstances the determination of the issue in proceedings A is, in the language of EU law, said to be directly decisive of the rights determined in proceedings B.
- In R(G) the claimant, a teaching assistant in a primary school, was dismissed for an inappropriate relationship with a 15 year old boy. His request to be represented by a solicitor was refused. He claimed that Article 6 applied to confer that right on the basis that the dismissal amounted to the determination of his right to practice in his profession since the findings of the governors would substantially influence any subsequent decision by the Independent Safeguarding Authority, a professional body charged with having to decide whether he should be barred from working with children as a result of his alleged misconduct. The Supreme Court held, by a majority, that on the facts the test of substantial influence was not met and Article 6 was inapplicable.
- Mr Hendy accepts that R(G) is not in play in this appeal: there is no direct link in this case between the internal disciplinary process and any subsequent action taken by the General Medical Council which might result in the appellant being barred from practice. The GMC is entirely independent of the Trust and it is not bound by the findings of the Trust. Article 6 is said to apply for the very different reason that the decision to dismiss Dr Mattu will have the effect of stopping him practising his profession. It is in substance, if not in form, a determination of that right, albeit that the Trust is only directly concerned with whether Dr Mattu should remain employed in a specific post with them.
- With that by way of background, I turn to consider the steps in the argument. I accept that step 3 is correct. On the assumption that the Trust's decision to dismiss amounts to a determination of the right to practise a particular profession, then Article 6 applies and Mr Hardy is in my judgment plainly not an independent tribunal. Mr Cavanagh floated an argument that Mr Grant was independent, relying on the decision of Blair J in R (On the application of Puri) v Bradford Teaching Hospitals NHS Trust [2011] IRLR 582. I do not think the submission is sustainable and it is inconsistent with certain observations made by Lord Brown in R(G) para 99 who thought it self evident – as indeed I do – that a domestic disciplinary body is plainly not independent in Article 6 terms. However, for reasons I now develop, I do not accept that Mr Hendy can sustain any of the other steps necessary to make good his case.
- As a matter of fact I do not accept that in the circumstances of this case the only realistic conclusion is that the dismissal will render Dr Mattu unemployable elsewhere. Mr Hendy says that it is obvious given in particular that Dr Mattu has been found to have been "un-manageable". That is a chilling criticism which in a practical world will defeat any attempts by Dr Mattu to obtain alternative employment.
- The judge concluded that this was not so and he had some - although I accept very tenuous - evidence to support his finding. But then neither did he have positive evidence that Dr Mattu would be rendered unemployable; it was simply asserted by his counsel that common experience would confirm that this was obviously the case. I have no difficulty in accepting that the stigma of dismissal will in some cases render an employee effectively unemployable (although Dr Mattu also has the option of going into private practice) but I do not accept that it does so here. It is in my view pertinent to note that Dr Mattu's professional competence has not been questioned in this case, and furthermore the misconduct for which he was dismissed did not involve acts which would generally be perceived to be disreputable or disgraceful conduct such as to cause any self-respecting employer to refuse Dr Mattu employment. I have no doubt that some employers at least will recognise that relationships can turn sour, leading to criticism of the employee, without necessarily assuming that the employee is wholly to blame for the breakdown. I therefore reject the fundamental premise on which the Article 6 argument depends.
- Strictly it is not necessary to engage with the other steps in the argument, but we heard detailed submissions on them and I will briefly set out my conclusions.
- As I have said, in order for Article 6 to apply there must be a determination of a civil right. Standing back and reflecting on the nature of the decision free from authority, I do not see how it can sensibly be said that the employer in this case is determining rights. There is something highly artificial in applying Article 6 to the contractual disciplinary procedures carried out by an employer, even one in the public sector.
- The decision to dismiss pursuant to a disciplinary process involves a claim by the employer that he is lawfully exercising a contractual right. He is not purporting to act like a judge; he is protecting his own interests under the contract, albeit that this necessarily involves finding facts and interpreting the scope of the contract. He is asserting a right rather than determining it. Likewise in the case of an employee who resigns in response to what he alleges is a repudiatory breach of contract by the employer. In my judgment, it is fanciful to suggest that he is thereby determining the employer's rights. Furthermore, to require an independent body to determine the contractual rights before the parties have decided what positions they will adopt with respect to a particular issue undermines the autonomy of the parties which contract is designed to confer.
- It is not that civil rights are not in engaged in the disciplinary process leading to dismissal; plainly contractual rights are in issue and they are civil rights, as is the right to remain in the employment one currently holds, as Baroness Hale observed in R (Wright) v Secretary of State for Health [2009] 1 AC 739, para 19. Domestic procedures engage and may affect those rights but it has never been suggested that the decision to dismiss from a particular job engages Article 6. Indeed, in Le Compte v Belgium the ECtHR observed (para 41) that "disciplinary proceedings do not usually lead to a contestation (dispute) over civil rights and obligations." This cannot be because they do not engage civil rights. It is because at that stage there is no dispute which is being determined. In the employment context that comes later once an employer asserts and acts on what he believes to be his contractual rights. If the employer's actions are challenged, a dispute arises and the determination of rights will then be made by a court or employment tribunal, as the case may be, which will be Article 6 compliant.
- If the usual exercise of contractual disciplinary powers does not determine contractual rights, why should it be different because the consequence of a dismissal is that the employee may be rendered unemployable elsewhere? It is true that where that is the case, a different right is being relied upon. It is not the right to a particular job but rather the right to practise in a particular profession or field of employment. But I find it difficult to see logically how the decision can be characterised as a determination of that right but not a determination of the right to retain the particular job since both rights are, on this premise, being decided together and as part of the same process. Furthermore, the gravity of the consequences of a decision does not change the nature or character of the decision which is being made. If there is no dispute between the parties until the employer has decided to dismiss, that must be the case irrespective of the consequence of the dismissal.
- Free from authority, I would unhesitatingly hold that the exercise of the contractual power to dismiss, even pursuant to agreed procedures, does not attract the protection of article 6 even where the dismissal effectively freezes the employee out of his chosen profession. The ECHR cases which establish that Article 6 applies to the right to exercise a profession or vocation are all concerned with decisions taken by public or professional bodies directly regulating that right. None of them has to my knowledge involved the exercise of contractual rights by an employer. So they do not assist Mr Hendy's argument.
- However, there are two domestic decisions which lend some support to the argument that rights attracting Article 6 are being determined where the decision by an employer to dismiss impinges on the right to practise a profession. The first is Kulkarni, which is a lynch-pin in Mr Hendy's submission on this point. In that case the claimant was a trainee doctor who was the subject of disciplinary proceedings for alleged inappropriate conduct. He was denied legal representation and alleged that this was in breach of contract and infringed Article 6. The Court of Appeal held that he had a contractual right to legal representation. Lady Justice Smith commented that since the claimant was a trainee, he could never complete his training if he were found guilty of gross misconduct and that accordingly he would be unemployable as a doctor. In view of that, she said that had it been necessary for her to decide the Article 6 point, she would have held that:
- The other case is R(G), discussed above. The significance of that case is twofold. First, it did not in terms disapprove of, or even cast doubt on, the decision in Kulkarni (although as Stanley Burnton LJ has pointed out, it is difficult to see why the Kulkarni principle would not have applied in R(G) given the gravity of the alleged misconduct by the teacher). Second, it must have been premised on the assumption that a decision by the employer to dismiss involved a process amounting to the determination of a right. Lord Dyson, with whose judgment Lords Walker, Hope, and Brown agreed, held that in principle the disciplinary hearings would have had to be Article 6 compliant if, contrary to his view, they had been significantly influential in the later decision taken by the ISA:
- None of the authorities relied on by Lord Dyson to reach the conclusion in that case involved the exercise of contractual rights. It seems that the court simply assumed without argument that rights were being determined by the employer. For reasons I have given, I do not believe that is the case. I would therefore conclude that there has as yet been no decision which has authoritatively held that the exercise of the contractual power to dismiss for gross misconduct involves the determination of civil rights, even in those exceptional cases where its effect is that the employee is be unable to get a job elsewhere in the same field.
- There is a further problem with the analysis. Even if there is a determination of rights, it is difficult to see how it can be a determination of a right to practise in a chosen profession. In a typical case where this right is relied upon, such as Le Compte or Wright, the action of the administrative body directly bars the applicant either temporarily or permanently from exercising his profession. In those cases the right is directly engaged because once an order has been made, it is unlawful for the individual to seek work.
- This is not so here, however. The denial of the right, insofar as that arises, results not because the Trust has barred Dr Mattu - it has no such power - but because other employers will exercise their lawful freedom to refuse to employ Dr Mattu because they consider him unsuitable. As a matter of domestic law, there is no infringement of any right to work as against the Trust because the Trust does not guarantee him that right. There is, as a result of the dismissal, a stigma resulting in damage to his standing and reputation which renders him unwanted elsewhere. But he cannot assert as against the Trust his right – more accurately under domestic law a liberty - to work for other employers. The only rights in issue between the parties remain contractual rights.
- Accordingly, like Stanley Burnton LJ, I do not think that Kulkarni establishes a sound principle. Moreover, in my judgment there are two reasons in particular why Article 6 ought not to apply in circumstances envisaged in that case. First, if the principle applies then, as Mr Hendy conceded, it draws a distinction between private and public employers because article 6 would not apply to private bodies. In R(G) at paragraph 100, Lord Brown referred to it as a "stark anomaly" and it makes little sense.
- The second difficulty is that on the Kulkarni analysis the application of Article 6 depends on consequences. It follows that it becomes extremely difficult to know in advance whether it is applicable or not. Lord Justice Stanley Burnton has identified a number of the practical problems, and I will not repeat them. In my judgment they are powerful reasons why it is in principle undesirable to apply Article 6 to the dismissal decision of public employers.
- Lord Hope recognised that it was unsatisfactory to submit public employers to Article 6 requirements in the R(G) case. He suggested an alternative approach to the Article 6 problem which I respectfully suggest would be a more satisfactory solution if and to the extent that it might be said that dismissal by an employer engages the right to practise a profession (para 95):
- Lord Hope was suggesting that any failure to apply article 6 at the first level ought to be cured at a later stage rather than altering the nature of disciplinary proceedings. I would respectfully agree, save that I would prefer to say that in cases of this nature, Article 6 is simply not engaged at the domestic disciplinary level at all because no rights are being determined. If, contrary to my view, it can be said that there is some infringement of a right to practice a profession or vocation resulting from a dismissal - and I do accept that there will be circumstances where a dismissal will effectively freeze the employee out of his profession or field of employment - the State ought to have the obligation to put in place appropriate procedures which are Article 6 compliant. This would be necessary in any event for a private employer who is not subject to Article 6. In my judgment it is not, and ought not to be, the duty of the public sector employer to secure Article 6 compliance either.
- An alternative way in which the appellant put his case was to submit that he has suffered loss of reputation. He relied upon the decision of the ECJ in Werner v Poland [1998] 25 EHRR CD 61, [2003] 36 EHRR 28. In that case an insolvency judge requested the applicant to be dismissed from his position as the judicial liquidator of an insolvent company and a court, which included the requesting judge, ordered the liquidator to be dismissed. Not surprisingly, this was found to be a breach of Article 6. The decision did not involve the exercise of a contractual right. The ECJ concluded that the right to enjoy a good reputation was a civil right.
- In my judgment, this alternative formulation suffers from precisely the same difficulties as the primary case. First, the Trust was not determining any right to reputation; it was exercising contractual powers and whilst the appellant's reputation may have been damaged as a consequence of the decision, it was not determined by it. Second, as Blair J found in Puri, paras 45-48, in domestic law there is no general right to reputation of the kind relied upon here, and Article 6 cannot create such a right.
- I would adopt the same analysis with respect to a variant of this argument, namely that the right to reputation engaged Article 8. I would accept that Article 8 may in principle be engaged in a case of this kind, as Baroness Hale observed in the Wright case, and that by reason of the Human Rights Act, Convention rights are now civil rights as the Lord Nicholls observed in Re S (Minors) [2002] 2 AC 291 (at paragraphs 70-73). Also there is authority from Strasbourg that a right to reputation falls within the scope of article 8: see Pfeifer v Austria (2009) 48 EHRR 8. But it is fanciful to suggest that the Trust was determining an Article 8 claim. There was no issue raised before the domestic tribunal as to whether Article 8 had been complied with; it was the decision to dismiss which allegedly gave rise to an infringement of that right and any dispute about the right only arose at that stage. So in my view, none of these alternative formulations of the case engages Article 6.
- Even if the decision involved a determination of Dr Mattu's right to practise his profession, the related question is whether the procedures for reviewing that decision taken overall were Article 6 compliant. It is well established that even if the initial decision is not taken by an independent tribunal, that can in some cases be remedied by an Article 6 compliant judicial procedure. Baroness Hale described the situation in the Wright case as follows (para. 23):
- Here there were effectively three levels of determination; the first hearing before the chief executive; the appeal before the appeal panel; and the final challenge before the court.
- The justification for having the initial decision over employment matters taken internally is self-evident. It is in accordance with established NHS procedures applying across the country and which have been the subject of collective negotiation. Although it cannot in my view be said that the chief executive constituted an independent tribunal within the meaning of Article 6, nonetheless as the observations of Baroness Hale demonstrate, the fact that it has not been suggested that the hearing before him was anything other than fair and impartial is relevant in determining whether the procedural protection overall, having regard to any appellate rights, is Article 6 compliant.
- The first appellate stage is the appeal to the appeal panel. This consisted of three individuals who were not connected with the Trust and I reject the somewhat specious arguments of the appellant to suggest that they were not really independent. However, as Mr Hendy points out, the appeal panel has limited powers: it does not review all aspects of the original decision, but can only interfere on specific grounds akin to those available in a judicial review. If this internal appeal exhausted the right to challenge the original decision, I would have reservations whether, even taken overall, there was an Article 6 compliant procedure. However, there are two further potential challenges open to the appellant.
- First, there is an action for unfair dismissal. Again, however, this does not allow the tribunal fully to review the decision of the employer. The employment tribunal cannot review the finding of primary facts for itself. Essentially it asks whether the decision to dismiss was taken after adopting a reasonable procedure and was one which a reasonable employer could have adopted: see the seminal case of British Home Stores v Burchell [1980] ICR 303, EAT. It is not, therefore, a full re-hearing although it is more intrusive than classic judicial review. Given the existence of fair and detailed procedural safeguards at the initial level, coupled with a right to appeal, I consider that where available (and it may not be in all cases) a claim for unfair dismissal would suffice to constitute full jurisdiction complying with Article 6, notwithstanding that it does not allow findings of primary fact to be reviewed.
- Even if I am wrong about that, I strongly incline to the view that the right to challenge the decision for breach of contract in a wrongful dismissal action will constitute full jurisdiction within the meaning of EU law. That action can be pursued in either the employment tribunal or the court, although in the former, there is a limit to the damages which can be recovered.
- Mr Hendy disputes that the contractual action constitutes full jurisdiction for two quite distinct reasons. First, he submits that the court cannot review the merits of this particular decision to dismiss any more than the employment tribunal in an unfair dismissal claim. His argument is that where, as here, the parties have agreed detailed procedural rules to regulate the determination of whether the employee has committed misconduct or not, the implication must be that, absent at least a perverse conclusion or one based on no evidence, the employee will be bound by the findings of fact. They will be treated as final and cannot be reopened in court.
- Mr Hendy accepts that the court could interfere with the employer's assessment that the misconduct amounts to gross misconduct justifying instant dismissal, but it cannot determine whether the misconduct has actually been committed. Putting it in contractual language, it cannot determine whether a breach has occurred, but it can determine whether that breach is repudiatory.
- We heard little oral argument about it and were inundated with authorities after the hearing which have not been the subject of careful consideration or argument. In view of that, and given that the issue is essentially peripheral to my overall conclusions, I am reluctant to reach a final view about it. However, like Stanley Burnton LJ, I would not readily imply a term into a contract which would limit the power of the court to determine whether or not there has been a breach of contract. As Lord Steyn observed in the Skidmore case, in a passage to which I have already referred, it would need very clear language before a court should allow an employer to be the final arbiter on questions of fact. I very much doubt whether it is appropriate to imply a term to that effect here. Moreover, there are numerous authorities which do not sit happily with Mr Hendy's submissions, and Stanley Burnton LJ has referred to some of them.
- Mr Hendy also submitted that the principle enunciated in the case of Johnson v Unisys Ltd [2001] UKHL 3; [2003] 1 AC 518 recently confirmed by the Supreme Court in Edwards v Chesterfield Royal Hospital NHS Trust [2011]UKSC 58; [2012] ICR 201 prevents the appellant from pursuing this claim. I do not accept that the principle has that effect. Nothing in Johnson prevents the employee from suing for wrongful dismissal, as Lord Dyson made clear in Edwards, para 44. The principle is merely concerned with the damages which can be recovered where loss results from the manner of dismissal.
- But even if Mr Hendy's argument is correct, and there is either an express or implied contractual term which confers power on the employer to make unassailable findings of fact, I do not accept that this would amount to a breach of Article 6. It is true that the court could not then make its own independent findings of fact but that is simply because that would be inconsistent with the terms of the contract. If the court were to carry out its own independent review that would amount to varying the contract and substituting new and different rights for those which the parties had agreed. Article 6 does not permit this.
- This underscores the point that the only right in issue here is the contractual right of the employer, not some vague inchoate right (against the Trust at least) to work in a particular profession. It may be a lacuna in the law if the contract rights are so framed as to prevent an employee being able to fully challenge the merits of a decision to dismiss which does in practice operate as a bar to his working in his chosen profession or field of employment. But the lack of any such right cannot be remedied by recourse to Article 6 and does not constitute a breach of Article 6. If and in so far as that Convention rights would provide the appropriate remedy, for reasons I have given it is in my view impossible to say that the decision to dismiss involved a determination of Convention rights.
- For these reasons, I would dismiss this appeal.
- I agree with the other members of the court that the procedure by which Dr Mattu was dismissed did not attract the protection of Article 6 of the European Convention on Human Rights. But I do not, with respect, adopt all their reasons for this conclusion. In particular I am unwilling to adopt Lord Justice Stanley Burnton's argument from consequences. Nor, while I agree that the decision in Kulkarni must be treated with caution, do I accept that there is a divide in principle between public and private sector employment, for the horizontal effects of the Convention are not yet cut and dried.
- The reason why article 6 has no present application is uncomplicated. An employer which dimisses an employee, without or with the benefit of a formal hearing, is not determining the employee's civil rights. It is exercising a contractual power. Depending upon the process adopted and its outcome, two civil rights may then come into play: the common law right not to be unlawfully dismissed and the statutory right not to be unfairly dismissed. For the determination of each of these the state provides an independent and impartial tribunal. It is required to do the same in respect of bodies empowered to truncate the practice of an individual's profession; but the present respondent is not such a body.
- I would not wish without further deliberation to be taken as assenting to more than this.
- I agree that in all the circumstances the refusal of an adjournment was not unfair. The argument on both sides recognised that the question is one for the court; it does not depend simply on the decision-maker's rationality.
- Dr Mattu's other ground of appeal is that the disciplinary panel which dismissed him was unlawfully constituted. It consisted solely of Andrew Hardy, the Trust's chief executive officer. Dr Mattu's case is that the Trust was contractually required to include in the panel an independent medically qualified member.
- If this is right, it will follow not only that the case investigator, John Mockler, ought to have had similar assistance in preparing his report but – as Mr Cavanagh QC accepts – that the decision on dismissal is void and must be properly retaken.
- The foundation of the submission is clause 3.2 of the Trust's contractual Procedure for Conduct and Capability Concerns:
- The question, which is for the court itself to answer, is whether the case which Mr Mockler had investigated and found fit for hearing, was "a case involving issues of professional conduct". In short, the Trust contends that it was not such a case: it was a case concerning Dr Mattu's non-co-operation with administrative arrangements for his reskilling. Dr Mattu contends that, since his cooperation depended on the need for these arrangements to include reskilling in medical research, the issue was one of professional conduct. On familiar grounds of principle I respectfully disagree (cf paragraphs 34 and 88 ante) that the view reached by the appeal panel on this question is entitled to any weight in our decision.
- The judge held that the former was the case. He said (at paragraph 46),
- The disciplinary allegation to which attention has to be paid is the first one: "Repeatedly refusing to comply with the reasonable requirements of your employer by refusing to sign the Action Plan and failing to cooperate with the reskilling process; refusing to accept or comply with reasonable instructions given to you by Mr Kennedy; and acting in such a way as to render yourself unmanageable." The fact that the other allegations which were rolled up with it did not have a professional dimension does not affect the issue.
- The purpose of the requirement to have a medically qualified member of an NHS disciplinary panel was considered by the House of Lords in Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27. The claimant was a surgeon who was alleged to have lied to a patient about why a procedure performed by him had gone wrong. The code then applicable (contained in circular HC 90(9)) distinguished between personal and professional conduct (as well as between these and professional competence), defining the latter as "performance or behaviour of practitioners arising from the exercise of medical … skills".
- Lord Steyn, with whom the other members of the Committee concurred, considered that in cases of overlap the professional conduct category was dominant. As to the allocation of cases to categories, Lord Steyn approved the judgment in this court of Keene LJ, who had held that the allegations against the claimant concerned professional conduct. This was (a) because they concerned lying about an operation; (b) because the lie had allegedly been told in the course of fulfilling a professional responsibility to explain the occurrence; and (c) because the allegations "raised issues which, at least to a degree, needed medical experience or expertise for their determination".
- The judge's second reason was based upon what appeared on the face of the charge. It cannot be the case that the way a charge is formulated or presented is decisive of its categorisation. If it were, it would be possible for a Trust to rule out medical participation in a disciplinary panel by, for example, charging a junior doctor who objected to a clinical procedure on ethical grounds with insubordination or unmanageability. Categorisation must depend on the substantive subject-matter of the dispute. The fact that few disputes are likely to share the specific characteristics (a) and (b) of the Skidmore case does not matter. What matters is whether the generic consideration, (c), applies: do the issues need medical experience or expertise for their determination?
- It is a deplorable fact that the two sides had taken up entrenched positions which left the middle ground unoccupied. Dr Mattu was contending that he needed 6 months' reskilling in research in the United States; Mr Kennedy was contending that he needed no research reskilling at all, at least until he was back at work. The possibility that he needed some reskilling in research but not in the US was one of the very things that an independent medically qualified person (a doctor, for brevity) might well have been able to consider and advise on. More widely, however, a doctor would have been in a position, as an administrator was not, to judge the relevance of research to Dr Mattu's cardiac consultancy.
- It was perfectly apparent from Mr Mockler's report that this was what the argument was going to be about. A single paragraph of it will suffice:
- I respectfully differ from the approach of Lord Justice Stanley Burnton to this question in paragraph 30. His proposition that the requirement for an independent doctor is "the basis of the distinction between professional misconduct and non-professional misconduct" seems to me to invert cause and effect. It is surely the distinction between these two forms of misconduct which is the basis of the requirement for an independent doctor.
- The judge in paragraph 46 (quoted above) did not seek to segregate research from treatment or teaching in listing Dr Mattu's professional skills: rightly, in my view, he treated all three as part of Dr Mattu's role, but he held that the issue was how Dr Mattu could embark on that role. This approach, in my respectful view, permitted the Trust, by the way it formulated the charge, to predetermine the nature of the case. If, by contrast, it had formulated the charge – as it could well have done – as unreasonably insisting on 6 months' reskilling in the US as part of the plan for his return to work, it would have been well nigh impossible to exclude a doctor from the panel.
- This is why it is for the court to determine what the true nature of the dispute was. In my judgment it was a dispute about whether there was a need for re-skilling in research before Dr Mattu returned to practice. From this question would come the answers to the disciplinary issues of who was being unreasonable and whether Dr Mattu was unmanageable.
- The appeal panel's decision, conveyed by its letter of 30 September 2011, was that "as this was a matter of non clinical conduct … there was no breach of procedure in Mr Hardy failing to have a medical member on the disciplinary panel". Mr Cavanagh adopts the panel's implicit definition of professional conduct as clinical conduct. I can find no warrant either for this or for Mr Cavanagh's further submission that the phrase 'medically qualified' indicates clinical rather than research expertise. Manifestly it does not. While not all clinicians undertake research, those who do so are in the ordinary way doing it not out of abstract interest but because it has a bearing on their own or others' clinical practice.
- No doubt if Dr Mattu had wanted to research the origins of Hippocratic ethics the Trust might legitimately have put its foot down; but his research, as described in his witness statement[2], had been practical and career-long. He had set up and directed a molecular genetics research laboratory at St George's Hospital medical school and had been an academic cardiologist until in 1996 he accepted employment with the Trust as part of Warwick University's (successful) bid to set up a medical school, relying in part on its being able to offer clinical training at the Walsgrave Hospitals.
- His statement goes on to describe his presentation of research papers and his role as a higher degree examiner, and to describe the two-way traffic between the university and the Trust - in particular the Trust's own bid, with his help, for research funding. Hence the proferred inclusion in his job description of 3 research sessions a week.
- The job description includes in Dr Mattu's principal duties "research, preferably in the areas of non invasive cardiology and coronary prevention". It goes on to say:
- It is incontestable that Dr Mattu's professional work for the Trust included research. If so, a dispute about his need for re-skilling in research after a long period of illness was as much a dispute about professional conduct as a dispute about the usefulness of his research in earlier years would have been. In fact the more problematical word in the latter context might be 'conduct'; but since the allegation was of refusal to comply with a reasonable managerial requirement to sign an action plan which made no provision for reskilling in research, it seems plain enough that what was at issue was Dr Mattu's professional conduct. It was conduct because the charge concerned a refusal to cooperate; and it was professional because the refusal concerned an aspect of his job, research. It was – reverting to the Skidmore test – precisely the kind of issue on which an administrator needs a doctor's input if he is to reach an informed and just conclusion.
- I do not think the appeal panel was entitled to translate "professional" into "clinical", as it almost explicitly did: see paragraph 148 above. When asked whether a charge that a consultant with a 50:50 clinical:research contract had been pursuing pointless research could properly be heard without a doctor's input, Mr Cavanagh fairly and rightly accepted that the answer was no. In other words, there is no necessary exclusion of research from the ambit of professional conduct. It must depend on the substance of what is charged. Limiting it a priori to clinical work is both semantically and contractually impermissible. As Mr Hendy pointed out in reply, to do so would mean that a charge of plagiarism or cheating in the course of a doctor's research work would be heard by an administrator without any medical input.
- It is right to say that in at least two places the contractual procedure might appear to envisage such a limitation. In clause 1.13 it requires the case investigator to "formally involve a senior member of the medical … staff where a question of clinical judgment is raised during the investigation process". But this is preliminary in-house advice and no more. Then in clause 1.18 the procedure provides:
- It follows, in my judgment, that Dr Mattu was contractually entitled to have the disciplinary case against him heard by a panel which included a medically qualified member who was not employed by the Trust. I would hold that the Trust's failure to make provision for this renders Mr Hardy's adjudication against him void.
Lord Justice Stanley Burnton :
Introduction
The contractual framework
"The distinction between personal and professional misconduct is abolished. Doctors and dentists employed in the NHS will be disciplined for misconduct under the same locally based procedures as any other staff member;
There is a single process for handling capability issues about the practitioners professional competence closely tied in with the work of the National Clinical Assessment Authority;
Health issues are routinely dealt with through the occupational health service;
The employing Trust is squarely responsible for the disciplining of its medical and dental staff – not outsiders;
There is scope bring in expert advice for panels considering capability issues;
The capability panel will be handled by an independent chair;
The same disciplinary procedures will apply to all doctors and dentists employed in the NHS"
"3.2 Where the alleged misconduct being investigated relates to matters of professional nature, or where an investigation identifies issues of professional conduct, the Case Investigator must obtain appropriate independent professional advice. This independent advice may be obtained internally and externally as deemed appropriate. Where a case involving issues of professional conduct proceeds to a hearing under the employer's disciplinary procedure the panel must include a member appointed by the LNC who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is employed by the organisation.
3.4 The Trust's Disciplinary Procedure sets out acceptable standards of conduct and behaviour expected of all its employees. Breaches of these rules are considered to be 'misconduct' and examples are set out in the procedure. Examples of issues that should be investigated under the Trust's Capability Procedure are set out in paragraph 4.4 below.
3.6 Although it is for the Trust to decide upon the most appropriate way forward having consulted the NCAS, the practitioner may be use the Trust's grievance procedure if they consider that the case has been incorrectly classified."
Section 4 is entitled "Procedures for dealing with Issues of Capability". It included the following:
"4.1 There will be occasions where the Trust considers that there has been a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge or ability. These raise issues related to capability. Matters that should be described and dealt with as misconduct issues are covered in part 3 of this procedure.
4.5 It is inevitable that some cases will include conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than a one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. It is for the Trust to decide upon the most appropriate way forward having consulted the NCAS. The practitioner is also entitled to use the Trust's grievance procedure if they consider that the case has been incorrectly classified. Alternatively or in addition he or she may make representations to the Designated Board Member.
4.6 The procedures set out below are designed to cover issues where a doctor's or dentist's capability to practice is in question. Prior to instigating these procedures, the employer will consider the scope for resolving the issue through counselling or retraining and will take advice from the NCAS."
The facts
"9.8 In February 2009 (24 February 2009) the parties set out their views in respect of the academic re-skilling. Mr Kennedy [the Trust's Medical Director] confirmed (pg 284) that he was:
"not prepared to sanction a further 6 months research training not sanctioning another six months in terms of academic training whether here or in the States or wherever, not a prerequisite to us getting you back here in to work this is a personal development after you return to work. Clinical re-skilling comes first get you back into the role of a Consultant Cardiologist."
9.11 Mr Kennedy's position was that he was supportive of Dr Mattu's academic interest and activities but he wanted Dr Mattu to return to the Trust as a practicing Cardiologist. Once Dr Mattu had successfully completed his re-skilling programme and should Dr Mattu then wish to pursue additional overseas experience, then he would consider a secondment proposal (pg275). This was not acceptable to Dr Mattu, as Dr Mattu objected to research being considered as a peripheral of his job.
11.6 I have reviewed the contractual documentation available to me. The contractual documentation suggested that Dr Mattu was appointed as, and remains, an NHS Consultant, engaged primarily in clinical work with an interest in research. Dr Mattu's contract of employment lists research as eighth in a total of eleven responsibilities. As discussed above, it is clear that the job plan in place before Dr Mattu's suspension provided for no sessions of research at all, which was in fact unusual as it would be usual for a Consultant's job plan to have 2.5 sessions per week for supporting professional activities, which in a teaching hospital would include academic activity (p 607). In 2004 Dr Mattu stated that he had 'no designated time for research' (p593). I can therefore find no evidence to support Dr Mattu's contention that research was the single largest activity in his job plan (and therefore contract) prior to his suspension.
"14.9 I accept that Dr Mattu had the right to query certain aspects of the re-skilling programme and in principle I have no issue with that. It is rather the way in which Dr Mattu goes about doing this that in my opinion renders him unmanageable.
14.10 Rather than meeting or writing to the appropriate person to raise issues politely, Dr Mattu will write lengthy letters of complaint, lodge grievances or deal with matters through incorrect channels.
14.11 The tone of Dr Mattu's letters are often patronising, condescending and disrespectful to those assisting with the reintegration process including senior management, the Chief Executive and the Chairman (a few examples of which can be found at pages p16 p20-29, pg32, pg46-47, pg56, pg143, pg341, ph345) Reading through the correspondence I was shocked at the way in which Dr Mattu addressed his Medical Director and Chief Executive, which at times lacked basic professional courtesy and respect."
"1. Repeatedly refusing to comply with the reasonable requirements of your employer by refusing to sign the Action Plan and failing to cooperate with the re-skilling process; refusing to accept or comply with reasonable instructions given to you by Mr Kennedy; and acting in such a way as to render yourself unmanageable.
2. Leaking of confidential information about the Trust and its employees and/or the making of false allegations about the Trust and its employees to the broadcast media, press or other third parties (whether directly or indirectly).
3. During a period of extended sick leave, whilst you represented to the Trust that your illness was severe, and that you were unable to attend investigation meetings or attend the Trust for an Occupational Health Review, you attended a series of social events on consecutive evenings [and] your attendance at future events was advertised. You have, therefore, deliberately misrepresented the severity and effect of your illness to the Trust and to those managing the investigation processes. In doing so, your conduct is such as to amount to a breach of your duty of fidelity to the Trust, as your employer, and seriously damages the trust and confidence that should exist between you and the Trust."
"I then considered whether your reason for refusing to sign the Action Plan was reasonable. Your dominant reason for this was your insistence on the provision by the Trust of 6 months academic re-skilling prior to your return to clinical duties. I considered this but concluded that this was not a reasonable demand on your part and did not represent a good reason or justification for your failure to follow Mr Kennedy's reasonable instruction to agree and sign the Plan. There was evidence that Mr Kennedy took steps to gain independent specialist advice on this matter and that all who were consulted agreed that a period of academic re-skilling before you returned to clinical duties was not necessary or appropriate. In addition, these same specialists confirmed that the re-skilling programme that has been supported by Mr Kennedy was reasonable in order to allow you to refresh the necessary skills to enable you to return to work at the Trust as a consultant Cardiologist effectively."
(1) Failure to follow procedure.(2) Inequity of treatment.
(3) New evidence coming to light.
(4) The decision reached was not reasonable in the circumstances.
"The panel's decision in respect of this point of appeal was made at the conclusion of the hearing on 13 May 2011, outlined to you verbally and confirmed in the notes of the hearing. I will summarise the panel's decision on this ground of appeal as follows. The appeal panel concluded that Maintaining High Professional Standards (MHPS) and the Trust's "Procedure for Conduct and Capability Concerns in relation to Medical and Dental Staff" were applicable. The panel concluded that as this was a matter of non clinical conduct, the use of the Disciplinary and Appeals Procedure was correct and there was no breach of procedure in Mr Hardy failing to have a medical member on the disciplinary panel.
The appeal panel also concluded that Mr Hardy acted reasonably in proceeding with the disciplinary hearing in November 2010 having considered the number of cancellations the Trust accepted, the adjustments made for the November 2010 disciplinary hearing, Mr McKivett's admission in October 2010 that you had not made any preparation for the hearing, the concession that Mr. McKivett was invited to attend on your behalf and the lack of certainty regarding your return to work."
"On reviewing the emails and specifically an email exchange between you and Darren Parkin, Editor of the Coventry Telegraph on 11th and 12th May 2011, the appeal panel's view was that, in contrast to your assertion, the email exchange supported the decision made by Mr. Hardy at the disciplinary hearing."
"4.1 In respect to allegation one, the appeal panel concluded that no information was presented in regard to this point which showed that the original decision had been wrong. Mr. Hardy highlighted that the Trust's intention was always to return you to your substantive role as a Consultant Cardiologist. Mr Hardy reiterated that it was in all parties' best interest to ensure that you could return to work but all reasonable attempts to secure this had failed. Ms. Darby stated that you would only be able to perform 60% of your job role if you returned to work without academic re-skilling.
Following extensive discussion and questioning the appeal hearing you demonstrate no further willingness to agree a mutually acceptable action plan. It was noted that you refused to sign the action plan on 6 occasions thereby failing to follow a reasonable instruction.
The appeal panel found that Mr Hardy's decision was reasonable and the appeal on this ground is rejected.
4.2 In regard to allegation two, the appeal panel concluded that Mr Hardy's decision on this point was reasonable. The appeal panel determined that the new evidence presented by you would not have been likely to have altered his conclusion. Therefore the appeal is rejected on this ground.
4.3 The appeal panel heard no new information in respect to allegation three. The appeal panel therefore concluded that Mr Hardy's view that your conduct was damaging to the employment relationship and therefore breached the essential trust and confidence required between you and the Trust as your employer, was a reasonable conclusion and therefore your appeal is rejected on this ground.
"… your conduct in respect to all three allegations demonstrated your unwillingness to adhere to the Trust's expectations of you as an employee.
Throughout the appeal process, the panel noted a number of instances which reinforced the view in the management case that you were unmanageable.
In conclusion the appeal panel determined that Mr Hardy's decision that the allegations amounted to gross misconduct was reasonable.
The appeal panel determined that the sanction of summary dismissal was reasonable in the circumstances and therefore dismissed your appeal."
The contentions before the judge and the Court of Appeal
"An issue for the Court to decide is whether Mr Hardy had, in the circumstances, the entitlement under the contract and in the light of Article 6, to dismiss Dr Mattu. The Court does not have to decide whether Dr Mattu was guilty of the disciplinary allegations with which he was charged, or whether the allegations (in the light of his defence) merited dismissal (or any sanction."
(1) In the circumstances of this case, all three of the allegations against Dr Mattu raised issues as to his professional conduct. Paragraph 3.2 of the Disciplinary Procedure required the Trust to seek, during the investigation of Dr Mattu, independent professional advice and that the Chief Executive, when he considered the question of dismissal, should in his deliberations have had the benefit of a medically qualified member who was independent of the Trust. It was not suggested that the second and third allegations were allegations of professional misconduct.(2) The Trust was in breach of contract by not adjourning the misconduct hearing which led to Dr Mattu's dismissal on the 30 November 2010.
(3) The process by which Dr Mattu was dismissed and his appeal from it constituted a determination by the Trust of a civil right of Dr Mattu and was therefore subject to the requirements of Article 6. The Trust's procedures did not satisfy with those requirements.
(4) Dr Mattu's dismissal should be declared a nullity and an injunction granted to restore him to his employment by the Trust.
Ground (1) has been conveniently referred to as raising "the classification issue", Ground (2) "the adjournment issue" and Ground (3) "the Article 6 issue". The Trust disputed each of these contentions.
(1) The Trust had correctly concluded that the allegations against Dr Mattu were not of professional misconduct so as to require the panel considering them to include an independent medically qualified person.(2) Mr Hardy had been entitled to refuse to adjourn the hearing of Dr Mattu's case.
(3) There was no breach of Article 6.
(4) It followed that the question of remedy did not arise.
Discussion
(a) The classification issue in relation to the first allegation
(1) The allegation "on its face is nothing to do with the exercise of professional skills by Dr Mattu. It is a refusal to comply with reasonable requirements, a failure to comply with reasonable instructions and acting in an unmanageable way."(2) "Dr Mattu had been employed by the Trust as a consultant cardiologist to provide services under the National Health Service Acts. These were, in their essentials, clinical services involving, as one might expect for a health service, patients. The agreement with Warwick University was separate from the agreement with the Trust. The ability to perform under it was not coincident with the ability to perform under the agreement with the Trust."
"What you have here is essentially an employment dispute. This doctor has clearly fallen out with his Trust. You have heard a great deal about how the investigator for the Trust felt that things had become rather dysfunctional. You may very well agree with that when you look at some of the papers, but just because a doctor disagrees with his employer about the terms of his contract and so forth, it does not mean that there are any real concerns about his registration as a doctor at all. This Trust may consider that he is unmanageable, but there is simply no evidence anywhere else that he is unmanageable as a doctor or cannot continue to be a doctor. In fact, I will be taking you to documentation that suggests very much the opposite. …"
A little later in his submissions, Dr Mattu's counsel referred to the Trust's allegations and said:
"We characterise those matters as an employment dispute."
The adjournment issue
(1) There had already been 6 adjournments.(2) The Trust's Disciplinary Procedure envisaged a speedy decision. In Dr Mattu's case, the disciplinary investigation had commenced some 11 months previously and a disciplinary hearing had not yet taken place.
(3) Some of the matters to be considered were relatively old: in relation to his re-skilling programme, to 2007.
(4) There was limited medical information available.
(5) There was no indication as to when Dr Mattu would feel able to attend a disciplinary hearing.
(6) Dr Mattu was represented by an experienced professional representative who could participate in the hearing and put forward his case.
"76. … I am clear, having heard Dr Mattu give evidence, that he was anxious to control the material that the Trust received. He saw drafts of documents that were sent on his behalf and imparted to his general practitioner an attitude towards the Trust which was, at the lowest, questioning. Dr Buckley was, in fact, not a satisfactory person to provide an occupational health report as the Health and Work Handbook [A publication supported by the Department for Work and Pensions and contributed to by the Royal College of General Practitioners] makes plain. It is strongly recommended that doctors avoid acting as both GP and occupational physician. The potential for blurring of roles and confusion is too great."
"Given the current efforts to clarify a difficult medical scenario, I would be most grateful if the Trust would consider deferring their hearing until early next year."
I do not regard this as a forecast that the disciplinary hearing could take place with Dr Mattu's personal participation early in 2011; moreover, the reference to "early next year" was vague.
The Article 6 issue
(1) Did the Trust's disciplinary procedure engage Article 6?(2) Does the Court have full jurisdiction to determine whether or not a doctor summarily dismissed under the disciplinary procedure of the Trust (and of MHPS) was lawfully dismissed?
"46. In addition, it must be shown that the 'contestation' (dispute) related to 'civil rights and obligations', in other words that the 'result of the proceedings' was 'decisive' for such a right.
According to the applicants, what was at issue was their right to continue to exercise their profession; they maintained that this had been recognised to be a 'civil' right in the König judgment [König v. Germany (1978) 2 EHRR 214].
…
47. As regards the question whether the dispute related to the above-mentioned right, the Court considers that a tenuous connection or remote consequences do not suffice for Article 6 (1), in either of its official versions ('contestation sur'; 'determination of'): civil rights and obligations must be the object—or one of the objects—of the 'contestation' (dispute); the result of the proceedings must be directly decisive for such a right.
Whilst the Court agrees with the Government on this point, it does not agree that in the present case there was not this kind of direct relationship between the proceedings in question and the right to continue to exercise the medical profession. The suspensions ordered by the Provincial Council on 30 June 1971 (Dr. Le Compte) and on 24 October 1973 (Dr. Van Leuven and Dr. De Meyere) were to deprive them temporarily of their right to practise. That right was directly in issue before the Appeals Council and the Court of Cassation, which bodies had to examine the applicants' complaints against the decisions affecting them."
"33. … What remains in dispute, however, is whether the disciplinary proceedings initiated against the petitioner could lead to a "determination of her civil rights and obligations" within the meaning of Article 6(1). I use the word "could" advisedly. In my opinion, for the purposes of the present proceedings it is not necessary for the petitioner to establish that, whatever their outcome, the disciplinary proceedings will result in a determination of her civil rights and obligations. In my opinion, if the petitioner can establish that the disciplinary proceedings could result in a finding that would constitute a determination of her civil rights and obligations, the decision to initiate those disciplinary proceedings is open to challenge as being incompatible with the petitioner's Convention rights. Before me, no party disputed that it was open to the petitioner to raise this challenge at this stage. None of the counsel for the respondents, the Secretary of State for Health and the Scottish Ministers suggested that the petition was premature or that the disciplinary proceedings required to run their course, before the Court of Session could address the issues, which the petitioner had raised."
"84. … At any rate in a case where the court is considering the position after the tribunal had made its decision, as in the instant case, a decision to reprimand or severely to reprimand the person concerned (here the claimant) does not amount to a determination of his civil rights because the right to continue to practise his profession is not at stake."
"65. It appears to me that the distinction which the court was drawing was that, in ordinary disciplinary proceedings, where all that could be at stake was the loss of a specific job, article 6 would not be engaged. However, where the effect of the proceedings could be far more serious and could, as in that case, deprive the employee of the right to practise his or her profession, the article would be engaged.
66. The difficulty is to know where to draw the line. Mr Stafford and Miss Lee both submitted that Dr Kulkarni was facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge were found proved, would be that he would lose his job. Only proceedings before the General Medical Council can deprive a doctor of the right to practise. But, as Mr Hendy pointed out, the National Health Service is, to all intents and purposes, a single employer for the whole country. Indeed, for a trainee doctor, that is literally true as a doctor cannot complete his training in the private sector. If Dr Kulkarni is found guilty on this charge he will be unemployable as a doctor and will never complete his training. If he applies for any other position he will be obliged to declare the finding against him and the fact of his dismissal. Moreover, submitted Mr Hendy, it is highly likely that the system of 'alert letters' would be operated in this case if Dr Kulkarni were found guilty. An alert letter is a letter warning other NHS employers not to employ the doctor named, who is regarded as presenting an unacceptable risk to patients. The alert letter procedure is currently governed by the Healthcare Professionals Alert Notice Directions 2006.
67. It seems to me that there is force in Mr Hendy's submission and, had it been necessary for me to make a decision on this issue, I would have held that Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS."
"89. I recognise the force of the submission made by [counsel for the defendant] that it appears unsatisfactory for the decision as to whether Article 6 applies to disciplinary proceedings against hospital practitioners to be taken on a case by case basis, depending on the gravity of the charge, the prospect of the proceedings resulting in dismissal and/or the evidence about the practitioner's chances of obtaining alternative employment in the event of dismissal. As he said, this would lead to inevitable uncertainty as to whether Article 6 was engaged in any individual case. It seems to me arguable that the wide range of individual circumstances covered by the disciplinary procedures militates against a finding that Article 6 is engaged in relation to disciplinary proceedings taking place pursuant to MHPS. In any event, I do not consider that the claimant's case falls within the type of exceptional circumstances envisaged by Smith, LJ and I find that Article 6 did not apply."
"The point being made is that if the question as to whether Article 6 applies to disciplinary proceedings against hospital practitioners has to be taken on a case by case basis, uncertainty will result. In the present case (which unlike Hameed is a judicial review), for example, there was considerable disagreement over the conclusions to be drawn from the evidence about the claimant's prospects of obtaining alternative employment, which is essentially a factual question."
"33. It is common ground that the civil right with which we are concerned is the claimant's right to practise his profession as a teaching assistant and to work with children generally. There is no doubt that this right would be directly determined by a decision of the ISA to include him in the children's barred list. He does not, however, contend that the proceedings before the ISA would violate his article 6(1) rights. His case is that (i) the disciplinary proceedings would have such a powerful influence on the ISA proceedings as to engage article 6(1) in both of them and (ii) the consequences of being placed on the children's barred list by the ISA would be so grave for him that the right to a fair hearing vouchsafed by article 6(1) meant that he was entitled to legal representation in both proceedings.
34. If there is no connection at all between the disciplinary proceedings and the proceedings before the ISA, it is obvious that article 6 has no role to play in the disciplinary proceedings. Ex hypothesi, they have nothing to do with the civil right in question.
35. The principal question raised on this appeal is what kind of connection is required between proceedings A (in which an individual's civil rights or obligations are not being explicitly determined) and proceedings B (in which his civil rights or obligations are being explicitly determined) for article 6 to apply in proceedings A as well as proceedings B. Does the connection have to be so strong that the decision in proceedings A in effect determines the outcome of proceedings B (as Mr Bowers QC submits)? Or is it sufficient that the decision in proceedings A has an effect on proceedings B which is more than merely tenuous or remote (as Mr Drabble QC submits)? Or does the connection lie somewhere between these two positions?"
"69. So where does this leave the test of "substantial influence or effect" proposed by Laws LJ? He was careful to say that an applicant
'may (not necessarily will) by force of article 6 enjoy appropriate procedural rights in relation to any of the others [set of proceedings] if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation': [2010] 1 WLR 2218, para 37 (emphasis added).
In my view, this is a useful formulation. It captures the idea of the outcome of proceedings A being capable of playing a "major part in the civil right's determination" in proceedings B. That is what fairness requires. Anything less would be "excessively formalist" (see para 87 of the Commission's Opinion in Ruiz-Mateos 16 EHRR 505) and would give too much weight to the fact that the two sets of proceedings are, as a matter of form, separate. The focus should be on the substance of the matter. The court should always keep in mind the importance of ensuring that the guarantees afforded by article 6(1) are not illusory. It is clearly established that, where a decision in proceedings A is dispositive of proceedings B, article 6(1) applies in proceedings A as well as in proceedings B. That is what the right to a fair hearing in proceedings B requires. Why does fairness not require the same where the decision in proceedings A, although it is not strictly determinative, is likely to have a major influence on the outcome in proceedings B? As a matter of substance, there is not much difference between (i) an outcome of proceedings A which has a major influence on the result in proceedings B and (ii) an outcome of proceedings A which is dispositive of the result in proceedings B. In each case, the civil right of the person concerned is greatly affected by what occurs in proceedings A. If there is to be a difference in the application of article 6(1) between the two cases, it needs to be justified. There may be policy reasons (such as those referred to in Fayed 18 EHRR 393) based on the nature of the body charged with proceedings A which justify a different approach. But absent such policy reasons, it is difficult to see why article 6(1) should not apply in both cases. No such policy reasons have been identified in the present case. I propose, therefore, to consider whether article 6(1) applies in the present case on the basis of the test propounded by Laws LJ."
"So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal.
The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. ..."
The italics are mine.
"I agree with Mr Tam [counsel for the Secretary of State] that it is unhelpful to consider the relationship between fire officers and their employer authorities on a purely contractual basis. The Regulations modify what would otherwise be the contractual relationship by imposing appellate procedures on the decisions which must be observed by the authority."
"… The plaintiff has not undertaken to hold meetings subject to the opinion of the High Court on racing matters, a most unsatisfactory tribunal to deal with racing matters. The plaintiff has undertaken to hold meetings subject to the jurisdiction of the stewards of the Pony Turf Club, who do know something about racing matters, whereas the High Court does not. The whole idea of the statement of claim, as regards the declarations, was I think founded on a complete mistake that in some way the High Court would rehear the facts which led to the decision of the stewards and form an opinion different from that of the stewards and give effect to it. That, I think, is an entire mistake on the part of the plaintiff and of those who conducted his case.
"Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of 21 December, was sufficient to justify his dismissal. …"
See similarly Clouston & Co Ltd v Corry [1906] AC 122, Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 and Pepper v Webb [1969] 2 All ER 216.
Remedy
Conclusion
Lord Justice Elias :
The Classification issue.
Article 6
"Article 6(1) does not, however, guarantee any particular content for those (civil) "rights" in the substantive law of the Contracting States: the Court may not create through the interpretation of Art.6(1) a substantive right which has no legal basis in the state concerned. Its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law."
(1) In practice the effect of the decision to dismiss Dr Mattu means that he will be unable to obtain any other job whether in the public or private sector. Nor can he realistically go into private practice.
(2) This amounts to a determination of the appellant's right to work in his chosen profession. That right is engaged where the decision of the employer in practice has the effect of depriving the employee of that right, even though the decision to dismiss only directly affects employment in a particular post: see the observations of Smith LJ in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789.
(3) Article 6 applies where there is a determination whether a person can lawfully be deprived of the right to practise in his chosen profession: see e.g. Compte v Belgium, to which I have referred. The article requires that the determination should be made by an independent tribunal. Mr Hardy was not independent since he was employed by the Trust as Chief Executive.
(4) Although there are circumstances where the existence of an appeal to an independent court or tribunal might render a decision-making process Article 6 compliant notwithstanding a lack of independence at the first level; that is not the position here. Neither the Appeal Panel nor the court can review the merits of the decision to dismiss; all they can do is review the initial decision without revisiting the facts.
Step (1): Is Dr Mattu rendered unemployable?
Step (2): is there a determination of the right to practise a profession?
"Article 6 is engaged where an NHS doctor faces charges which are effectively of such gravity that, in the event that they are found proved, he will be effectively barred from employment in the NHS".
"I accept at once the gravity of the consequences for the claimant of being placed on the children's barred list. For that reason, I would agree with the courts below that, if article 6 did apply in the disciplinary proceedings, then the claimant was entitled to the enhanced procedural protection (normally associated with criminal proceedings) of the right to have legal representation at the disciplinary hearing. The more serious the allegation and the graver the consequences if the allegation is proved, the greater the need for enhanced protection: see Albert and Le Compte v Belgium (1983) 5 EHRR 533, para 30, R v Securities and Futures Authority Ltd, Ex p Fleurose [2002] IRLR 297, para 14 (per Schiemann LJ) and International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, para 38 (per Simon Brown LJ) and para 148 (per Jonathan Parker LJ)."
"Working backwards, as it were, I would also have been inclined to hold that the better way to cure any breach of article 6(1) at the initial stage would have been to require the ISA to adopt procedures which complied with article 6(1) rather to require the employer to adopt these procedures to make good gaps in the regime that is operated by the ISA. Laws LJ's conclusion was that article 6(1) required that the claimant should be afforded the opportunity to arrange for legal representation in the disciplinary proceedings should he so choose: [2010] 1 WLR 2218, para 53. But there is a serious risk that, if that course were to be adopted, disciplinary proceedings in the public sector would be turned into a process of litigation, with all the consequences as to expense and delay that that would involve. The burden that this would impose on employers, and its chilling effect on resort to the procedure for fear of its consequences, is not hard to imagine. A good indication that it was Parliament's wish to avoid this is to be found in section 10 of the Employment Relations Act 1999 that the employee has a right to be accompanied by an official of a trade union, not by a lawyer. To require the person to be provided with legal representation before the governors would go against that intention, and it would have been the wrong remedy. Our decision that the necessary nexus has not been established avoids these very unattractive consequences."
Alternative formulations of the case.
Step 4: can any failure at first instance be remedied on appeal?
"It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises "full jurisdiction": Bryan v United Kingdom (1995) 21 EHRR 342 , applied domestically in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 and Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] 2 AC 430 . What amounts to "full jurisdiction" varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject matter of the decision and the quality of the initial decision-making process. If there is a "classic exercise of administrative discretion", even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case"
Sir Stephen Sedley:
Article 6
Adjournment
The categorisation issue
"Where the alleged misconduct being investigated relates to matters of a professional nature, or where an investigation identifies issues of professional conduct, the Case Investigator must obtain appropriate independent professional advice. This independent advice may be obtained internally and externally as deemed appropriate. Where a case involving issues of professional conduct proceeds to a hearing under the employer's disciplinary procedure the panel must include a member appointed by the LNC who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is [not][1] employed by the organisation."
"First, the exercise of reskilling was an exercise, whatever its ingredients, designed to facilitate a return to work. In other words the process did not involve the exercise by Dr Mattu of his professional skill whether by treating, teaching or researching but rather it was an exercise whereby Dr Mattu could come to do those things."
Then, at paragraph 47:
"Second, the allegation on its face is nothing to do with the exercise of professional skills by Dr Mattu. It is a refusal to comply with reasonable requirements … and acting in an unmanageable way."
"8.5 Initially the dispute related to Dr Mattu's request to have 'a 6 month period of training in the USA, at a leading centre to be confirmed'. The dispute has now developed into the 'fundamental disagreement' as to whether Dr Mattu requires a 6 month period of 'academic re-skilling' following the completion of his clinical re-skilling before he returns to his role at the Trust."
It was on this basis that Mr Mockler went on in the next paragraph to pose the questions whether either Mr Kennedy's or Dr Mattu's stance on the Action Plan had been reasonable and whether Dr Mattu had rendered himself unmanageable. In reporting on them, he drew repeatedly on the opinions of academics and doctors (including the Trust's past and present medical directors of research and education): see paragraphs 9.23 and 11 passim of his report.
"There are close links with the University of Warwick and active research interest of the successful candidate will be encouraged. Several Medical and Surgical staff have honorary appointments at the University where there is a School of Postgraduate Medical Education."
Dr Mattu was among these.
"If during the course of the investigation, it transpires that the case involves more complex clinical issues than first anticipated, the Case Manager should arrange for a practitioner in the same specialty and same grade from another NHS body to assist."
This is an intelligible precautionary provision, but one which has no definitional role. It is simply a particular step on a particular road.
Note 1 The word “not” has been omitted from the text of the Procedure, but it is present in the source document, Maintaining High Professional Standards in the Modern NHS (MHPS).
[Back] Note 2 Unchallenged at trial, but doubted as to its extent in Mr Mockler’s report. [Back]