18 January 1963
Palmer |
v. |
Inverness Hospitals Board |
The pursuer is a registered medical practitioner, and by exchange of letters with the defenders, per the deputy medical superintendent at Raigmore Hospital, in March 1960, he was offered, and accepted, the post of house surgeon (or house officer) at the said hospital for the period of six months commencing 1st August 1960. The pursuer was accordingly employed by the defenders in that capacity from 1st August 1960 until his purported dismissal by the deputy medical superintendent of the said hospital on 22nd December 1960.
The defenders are the Board of Management for Inverness Hospitals, including Raigmore Hospital, constituted and functioning in terms of the National Health Service (Scotland) Act, 1947. On 22nd December 1960 the pursuer was involved in incidents with other members of the hospital staff at Raigmore Hospital which were alleged to have constituted, on the part of the pursuer, breaches of duty and proper behaviour. Later in the same day he was informed by Dr M'Lellan, the deputy medical superintendent, that, after consultation with, inter alios,Colonel Gordon, the medical superintendent for the Inverness Group of Hospitals, it had been decided to dismiss him from his said employment. He was paid his salary (subject to certain deductions) until 24th December 1960, and early on 25th December 1960, after a series of incidents, he was removed physically from the hospital.
It is unnecessary for the purposes of considering and deciding the present case to deal with, or animadvert upon, the allegations regarding the pursuer's conduct prior and subsequent to notification of his dismissal by Dr M'Lellan; or the actions taken by senior officers of the defenders, including the medical superintendent, Colonel Gordon, and his deputy, Dr M'Lellan, leading up to the pursuer's physical removal from the hospital; all as set out with great circumstantiality on record; which is perhaps as well for all concerned.
On 29th December 1961 the pursuer submitted to the defenders an appeal against his dismissal from the post of house officer at Raigmore Hospital, by the said medical superintendent and his deputy, in accordance with the procedure set down in a circular R.H.B. (S)(53)(3), issued by the Department of Health for Scotland on 27th February 1953 in relation to appeals against disciplinary action taken against members of hospital staffs by hospital employing authorities.
This circular is crucial to the pursuer's case, since it forms the basis of his contention that, during the whole procedure which followed thereunder, he was entitled to the protection of the principles of natural justice, which he alleges were transgressed in the ultimate stage of the procedure. The Secretary of State for Scotland is enjoined by the National Health Service (Scotland) Act, 1947, to establish a comprehensive health service in Scotland, including, inter alia, the provision of hospitals. In terms of the Act, he has established regional hospital boards, one of which is for the northern region. He has also established, under a scheme submitted by each regional board and approved by him, boards of management for the purpose of exercising functions with respect to the control and management of individual hospitals, or groups of hospitals, vested in him and operating in the area of the regional board. The defenders are the Board of Management for the group of Inverness Hospitals, of which Raigmore Hospital is one, within the northern region. One of the duties of a board of management such as the defenders is to employ members of the staff for the hospitals under its jurisdiction; and generally the Board of Management has to exercise on behalf of the Regional Hospital Board such of that Board's functions relating to the hospital, or group of hospitals, as may be specified in a scheme—cf. subsection (6) of section 12 of the Act.
In terms of section 12 (1) of the Act a regional hospital board (subject to the exercise of its functions in terms of section 12 (6) supra) is required to administer, on behalf of the Secretary of State, inter alia, the hospital services in its area, subject to, and in accordance with, such regulations and directions as may be given by the Secretary of State.
It was submitted by pursuer's counsel, and not disputed by defenders' counsel, that the said circular was a direction by the Secretary of State such as is provided for in section 12 (1), and, in my opinion, that submission is well founded. It is true that the circular was sent out by the Department of Health for Scotland, but it was not suggested that this was anything else than a piece of administrative machinery, or that it was not in fact a direction from the Secretary of State, as in fact it is stated to be therein.
The circular, in the first paragraph, states that it sets out the procedure to be followed by hospital employing authorities when representations are made to them on behalf of an employee who is aggrieved by any disciplinary action taken or proposed to be taken against him; and it was recognised as such, and acted upon according to their rights, by the defenders as a hospital employing authority in this case. Its importance emerges in this way. Counsel for both parties accepted as the law the passage in the speech of Lord Keith in Vine v. National Dock Labour Board, [1957] A. C. 488, where his Lordship said: Normally, and apart from the intervention of statute, there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract, and so unlawful, but could only sound in damages." I respectfully agree with, and adopt, that statement of the law. This is a case involving a dismissal of a servant by a master, and the pursuer cannot accordingly succeed in his action for reduction of the resolution of the defenders, approving of and ratifying his dismissal, unless he can establish that this is not a "normal" case; it being conceded that there is no statutory provision which constituted a special relationship or provided for special conditions. The pursuer seeks to establish a special circumstance which takes the case out of the normal rule by maintaining that the procedure set forth in the said circular for the hearing of appeals against disciplinary action, such as dismissal, became an inherent condition of his contract of employment with the defenders; that this procedure at all stages placed the defenders, or any committee thereof, in the position of a quasi-judicial body, and called for the observance of the principles of natural justice and fair play at all stages of the appeal procedure; and that these principles were flagrantly disregarded at the ultimate stage of the proceedings, namely, at the meeting on 8th February 1961 when the decision to dismiss him was approved and ratified. He accordingly maintains that in these special circumstances the normal rule does not apply, and that the non-observance of these principles entitles him to the decree of reduction which he seeks. It is but right to point out that the pursuer does not specifically aver in his pleadings that the provisions of the said circular were, or must be deemed to be, included in his contract of service with the defenders, nor does he seek specifically to link this up with other averments pointing to a breach of such a condition as the basis of his complaint; but he does aver that he tabled his appeal in accordance with the provisions of the circular, and proceeds to detail the procedure which followed thereon. The defenders admit this, and their counsel stated that no point was being taken on the inadequacy of pleading on the point, as parties were really concerned with obtaining an adjudication on the merits.
The defenders, however, maintain that the procedure set forth in the circular was only for administrative guidance, and observance of it did not constitute a condition of service in the pursuer's contract of service. If that be correct, then manifestly, and even by concession of his counsel, the pursuer's case must fail. The issues in the case accordingly resolve themselves into the following:—(1) Was this procedure incorporated into the pursuer's contract of service as an inherent condition thereof? (2) If so, did it put the defenders, or any committee of the defenders, considering the appeal under the procedure in the position of a quasi-judicial tribunal, bound to observe and apply the principles of natural justice and fair play?; and (3) If so, was there a transgression of these principles at any stage justifying the reduction of the resolution of 8th February 1961? I shall deal with these matters in more detail later, but it may help to clarify the issues if I state at this stage that defenders' counsel conceded that, if the procedure was or must be deemed to be a condition of the pursuer's contract of service, which he had a right to invoke and have observed with all its implications, then the hearing before the special committees hereinafter referred to, but not the proceedings at the meeting on 8th February 1961, must be regarded as quasi-judicial proceedings; and that if the proceedings at the meeting on 8th February 1961 (contrary to his contention) had to be regarded as being quasi-judicial, then the complaints made by the pursuer thereanent were sufficient, without inquiry, to entitle him to his remedy, on the ground that the basic principles of natural justice and fair play, as these had been construed and applied by the Courts, and as fully considered by Lord President Clyde in Barrs v. British Wool Marketing Board, 1957 S. C. 72, had been contravened.
It is, I consider, desirable to quote in full the said circular, which is in the following terms:—
"NATIONAL HEALTH SERVICE
Procedure for dealing with appeals against disciplinary action
1. This memorandum sets out the procedure to be followed by hospital employing authorities when representations are made to them on behalf of an employee who is aggrieved by any disciplinary action taken or proposed to be taken against him.
2. The Secretary of State desires that Boards should have the highest possible degree of authority and responsibility in appropriate matters, including disciplinary action of a major character such as dismissal. He cannot, however, rid himself of final responsibility for anything that happens in the hospital service, and he is therefore anxious that employing authorities, in exercising their disciplinary functions, should follow a procedure which makes it clear that each case is handled in an equitable manner. If such a procedure is not observed, he may have no alternative but to call for special inquiries.
3. Accordingly, until the Whitley Councils have reached agreement on procedure in disciplinary cases, the Secretary of State considers it essential that employing authorities should adopt the following procedure:—
An employee of a Regional Hospital Board or Board of Management who is aggrieved by disciplinary action, including dismissal, will be allowed to appeal to his employing authority (i.e., the authority by whom he was appointed). The authority will from amongst its own members (other than members directly involved in the circumstances leading to the disciplinary action or, where disciplinary action taken by a committee or subcommittee of the authority is the subject of appeal, members of that committee or subcommittee) establish an appeals committee to hear each appeal. The officer will have the right of appearing personally before the committee, either alone, or with a representative of his professional organisation or trade union, or with a friend not appearing in a professional capacity. The report of the committee will be submitted to the authority for a final decision on the case.
An appeal under these provisions should be lodged within three weeks of the receipt by the employee of notice of the disciplinary action, and the hearing should take place within five weeks of the receipt of the appeal.
Where, exceptionally, the whole Board of an employing authority has occasion to consider events which might lead them to take serious disciplinary action, the foregoing procedure of decision followed by a right of appeal becomes impracticable, because no members would be available to form an impartial appeal committee. In such cases, the employing authority will suspend judgment until the employee has been given the opportunity of being heard. The hearing will be conducted either by the employing authority itself or by a committee reporting to the authority, and the officer will be given the same facilities as he would enjoy under the standard procedure. (Any member of the authority who was directly involved in the circumstances under review would of course take no part in the hearing, nor in the subsequent deliberations.)
Nothing in the foregoing arrangements prejudices the right of an employing authority to take immediate action in cases of very grave misconduct. Where, however, there is any element of doubt in the case, the action will be by way of suspension rather than instant dismissal.
4. The adoption of this procedure should be made known to all concerned. It should, however, be made clear to them that the procedure is not applicable where minor disciplinary action (e.g., reprimand) alone is involved, and that it is subject to modification in accordance with any subsequent Whitley agreement.
5. The Secretary of State appreciates that in the case of a senior member of staff the procedure might not always be practicable or appropriate. If this were to be found so, the Regional Hospital Board or the Department, as the case may be, should be consulted at the earliest possible stage, and before any decision is conveyed to the officer concerned.
6. The rights of senior staff to suspend or dismiss other employees on disciplinary grounds should be clearly defined by the employing authority. Dismissal will rarely be appropriate for a first offence; and except in really serious cases an employee should not be put in a position of finding himself dismissed for a fault or failing about which he has not previously been warned, and which he may claim he could have overcome had he been given warning that it was seriously regarded.
7. This memorandum in no way modifies the machinery for the termination of the appointment of a consultant, which is set out in paragraph 16 of the Terms and Conditions of Service of Hospital Medical and Dental Staff."
The defenders admittedly purported to act in accordance with this procedure. The pursuer's appeal was considered by the defenders at a meeting held at the Royal Northern Infirmary on 18th January 1961, and in terms of the circular they appointed a special committee to hear the appeal and report on it to them at a special meeting to be held, and also to report on the events subsequent to the pursuer's dismissal. The special committee, five in number, held an inquiry on 27th and 31st January 1961, and heard statements from various witnesses, including the pursuer and Dr M'Lellan, the deputy medical superintendent. The pursuer was assisted at the hearing by a Dr Bolster who addressed the committee on his behalf. Colonel Gordon, the medical superintendent, also addressed the committee. In due Hospitals course the special committee made findings to the effect that the pursuer had committed the acts complained of, but in different ways came to the unanimous conclusion that the sentence of dismissal was not justified. I pause here to observe that no complaint is made by the pursuer regarding the proceedings at this hearing.
The report of the special committee came before a specially convened meeting of the defenders in the Royal Northern Infirmary on 8th February 1961. There are many allegations made regarding the proceedings at this meeting, but it is admitted that, in addition to the members of the defenders' Board, the chairman of the Board allowed to be present during the whole proceedings Colonel Gordon, the medical superintendent, Dr M'Lellan, his deputy, who had initially intimated the dismissal to the pursuer and who had given evidence before the special committee, two representatives of the Regional Hospital Board, and Mr Swannie, the legal adviser to the Scottish Hospital Service. The pursuer was not present nor was he represented. Various allegations, most of which are admitted, were made regarding the intervention of Mr Swannie in the proceedings. I need not examine these in detail, nor the effect which they may have had on the Board's eventual decision, because it was conceded by defenders' counsel that, if this meeting was to be regarded as a quasi-judicial tribunal, the admitted circumstances were such that they offended against the accepted principles of natural justice and fair play, and entitled the pursuer to his remedy of reduction of the resolution ultimately passed to his detriment. On the other hand, it was conceded by pursuer's counsel that, if this meeting had to be regarded not as a quasi-judicial tribunal, but merely as an administrative meeting at which employers were considering the dismissal of an employee, and at which the principles attaching to the proceedings of a quasi-judicial tribunal did not apply, then his complaints regarding the conduct of the meeting could not justify the remedy which he sought. In the event, the chairman of the Board moved a resolution to the effect that the pursuer's dismissal was justified and should be ratified, and the convener of the special committee moved an amendment, that the dismissal was not justified. On a division, seven members voted for the motion and seven for the amendment, whereupon the chairman gave his casting vote in favour of the motion. The resolution was accordingly carried, and it is this resolution which the pursuer seeks to reduce.
The primary question to be considered is whether the procedure set out in the circular was, or must be deemed to be, incorporated as a condition of the pursuer's contract of service with the defenders. It is provided in paragraph 4 of the circular that the adoption of the procedure should be made known to all concerned. In paragraph 3 it is provided that the procedure set out should be followed until the Whitley Councils have reached agreement on procedure in disciplinary cases. I was informed at the bar that the Whitley Councils have not yet reached any such agreement. Defenders' counsel stated that as employees of the Board are engaged under the existing terms and conditions as laid down by the appropriate Whitley Council (which eventually would include the procedure for dealing with appeals against disciplinary decisions), the procedure set out in the circular could not be deemed to be incorporated in the contract of service, since the conditions thereof were liable to be altered if the Whitley Council's procedure became operative during the currency of the contract of service. This, in my view, is not only an unsound argument, but is one which opens the door to the acceptance of the pursuer's contention. This procedure is expressly stated to be an interim procedure pending the agreement on procedure by the Whitley Councils, and if the latter, when approved and accepted, will become a condition in the contract of service, then, in my view, the procedure set out in the circular would equally fall to be incorporated into the contract of service until such time as it might be superseded by the Whitley Council's agreement on procedure or some other direction by the Secretary of State. In so far as any proposed changes may be made, and be thought to affect existing contracts of service, that is a matter which may have to be dealt with by administrative action. So far as the present case is concerned, the procedure set out in the circular was the procedure which the defenders were enjoined to carry out when they entered into their contract with the pursuer, and the pursuer was entitled to regard that as an inherent condition of his employment, as a safeguard against summary dismissal by an immediate superior. His right so to regard it seems to me to have been recognised by the defenders themselves, since they purported to carry out the procedure after the pursuer tabled his appeal. I accordingly hold that the procedure outlined in the circular constituted a right which the pursuer was entitled to invoke and have observed, with all its consequences, as an inherent condition of his contract of service with the defenders. It was submitted by defender's counsel that I should accept and follow, as being in pari casu, the finding of Barry, J., in Barber v. Manchester Regional Hospital Board, [1958] 1 W. L. R. 181, that the relationship between a consultant to a hospital and the regional hospital board was the normal relation of master and servant, within the meaning of Lord Keith's dictum in Vine (supra). I need not even consider whether I am in agreement with the finding of Barry, J., in that case, because it involved entirely different considerations from those in the present case. In particular, that case did not involve consideration of the effect of a circular similar to the circular in the present case on the contract of service and the rights flowing therefrom. On the basis that adherence to the procedure set out in the circular formed part of the contract of service, it was conceded by defenders' counsel that the provisions therein, for the procedure to be followed at the meeting of the special committee investigating the facts and reporting to the Board, constituted that meeting as a quasi-judicial tribunal, to which the accepted principles of natural justice and fair play would apply. There was, as I have stated, no allegation that such principles had in any way been transgressed at that stage.
Counsel for the defenders, however, strenuously argued that, once the special committee had reported back to the Board, the Board had to deal with the matter purely as an administrative act of an employer considering the question of the dismissal of an employee, that in these circumstances it was not fettered by any rules, any more than any other employer would be, that it did not matter whether the decision was reached by fair or unfair means or for justifiable or unjustifiable reasons, and that, if the pursuer was damnified by any illegal action on the Board's part, his remedy was simply an action for damages. If counsel for the defenders are right in their contention that the Board at this meeting was not sitting as a quasi-judicial tribunal, but simply as the employing authority considering the dismissal of an employee, unfettered by any rules such as the pursuer seeks to invoke, then the remainder of their argument is sound, as was conceded by pursuer's counsel. I cannot, however, regard their basic argument as being sound. It is stated in the second paragraph of the circular that the procedure is designed to make it clear that an appeal against disciplinary action (actual or proposed) will be handled in an equitable manner. This, in my view, must apply to the whole procedure. The Hospitals procedure provides for the appeal to be made to the employing authority, in this case the defenders. The employing authority is then instructed to appoint an appeal committee to hear the appeal under conditions which, from their nature and ex concessu, constitute the appeal committee as a quasi-judicial tribunal. The report of the appeal committee has then to be submitted to the employing authority for a final decision on the case. Special provision is made, both in the normal case and in exceptional cases, to exclude from participation in the deliberations any person who has been directly involved in the circumstances leading to the disciplinary action. It was submitted by counsel for the defenders that in these circumstances the appeal committee was a fact finding body which could make recommendations, and while it might be conditioned by the rules and principles relating to quasi-judicial tribunals, the situation was radically altered when the Board, as employing authority, came to consider the case in the light of the report from that fact-finding committee. In such circumstances, it was argued, the Board was just in the same position as a normal employer. I cannot sustain this argument, which seems to be basically wrong. If the procedure is designed to establish that an appeal will be handled in an equitable manner, it seems to me that it must be handled in an equitable manner at all stages. The appeal is not divisible—it is an unum quid. The remit to the special committee was to consider and report upon the appeal by the pursuer against his allegedly unjustifiable dismissal. When the special committee reported back, the report was to the effect that dismissal was not justified. The Board took the view that it was entitled to consider anew whether dismissal was justified, and the final decision rested with the Board. It would be strange indeed if special precautions were provided seeking to ensure that the principles of natural justice and fair play precluded any injustice resulting from the deliberations of the special committee, and yet all kinds of unjust and unfair influences were permissible when the Board itself carried the procedure a step further in order to reach a final decision. Since the appeal involved consideration of (a) whether the allegations against the pursuer were established, and (b) if so, whether they justified dismissal, and the appeal was against dismissal, consideration of the special committee's report for a final decision was merely a continuation of the appeal at a later stage in the proceedings, and was still an appeal which constituted the Board as a quasi-judicial tribunal. As Lord Chancellor Haldane said, in Local Government Board v. Arlidge, [1915] A. C. 120, "when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially." It would be strange if the committee appointed by the parent body was obliged to act judicially, but the parent body, with whom the ultimate decision on the appeal lay, was not. While there is no specific provision in the circular for the procedure to be followed at the final meeting of the employing authority, and in particular no provision made for the appearance of the appellant and/or a representative on his behalf, the basic principles of natural justice, and fair play must be carried forward into that later stage of the appeal. The employing authority at that stage may decide to sit alone, with no one else there to consider the report of the appeal committee, but when it allows to be present two of the senior officials who were immediately involved in the serving of the notice of dismissal on the pursuer in the first place (and who were parties to his forcible ejection from the hospital), and a solicitor in the position of Mr Swannie, who deployed many arguments, legitimate or otherwise, to persuade the Board to reject the report of the appeal committee and ratify the decision to dismiss, without allowing the appellant himself to be present or represented, then it seems to me that the basic principles of natural justice, equity and fair play have been transgressed, and that the whole purpose of the procedure set out in the circular has been Violated.
It was conceded that, if these principles fell to be observed at the meeting on 8th February 1961 (as I hold to be the case), then the matters complained of by the pursuer and admitted by the defenders created such a breach thereof as to justify the remedy which the pursuer seeks. I shall therefore sustain the two pleas-in-law for the pursuer, repel the pleas-in-law for the defenders, and, production having been satisfied, grant decree of reduction de plano as concluded for.
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