United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondent	MS J McNEILL (of Counsel) Hempsons Clarendon House 9 Victoria Avenue Harrogate HG1 1DY


 


MR JUSTICE LINDSAY: On 8 September 1995 the unanimous decision of the Industrial Tribunal, under the chairmanship of Mr J.M.Q Hepworth, was that Dr K.S. Trivedi had been fairly dismissed by his erstwhile employer, the Royal Hull Hospitals NHS Trust.

The Appellant before us, Dr Trivedi, has appeared before us in person. He is a General Practitioner who was employed on a part-time basis as a Clinical Assistant in ENT from February 1986 to 27 February 1995. On the appeal before us his erstwhile employer, the NHS Trust, has appeared by Ms McNeill.

On 19 December 1994, Dr Trivedi had been convicted by a jury at Grimbsy Crown Court of 10 offences of false accounting. He was sentenced to 160 hours of community service and he was required to pay £5,000 in costs. He lodged an appeal against that conviction but we have not, in fact, been told of its fate.

Dr Trivedi had not reported to the Trust that he was charged with such offences and the matter came to the Trust's attention through an article in the Yorkshire Post of 18 November 1994, where the prosecution's case against Dr Trivedi was reported. The opening paragraph of that extract from the Yorkshire Post said:

"A family doctor deliberately kept a chronically sick patient short of drugs so he could make money from him, Grimsby Crown Court was told yesterday."

Dr Trivedi was suspended from duty with the Trust from 12 December 1994.

On 9 January 1995, the Trust wrote to Dr Trivedi to acknowledge that whilst the charges against him related to his capacity as a General Practitioner they added:

"... it is felt that your actions have adversely impacted on your standing as a Medical Practitioner with The Trust and could undermine the confidence of both patients and colleagues."

Serious concern was also expressed that the doctor had failed to keep the Trust informed, either of the proceedings in court, or the outcome of those proceedings.

In the letter of 9 January 1995 the Trust wrote also:

"... this, we feel, has inevitably damaged the trust between employer and employee, arguably to such an extent that it is now irreparable."

So that anyone reading that letter, as Dr Trivedi would have done, would have seen that the employer/employee relationship was plainly threatened. A disciplinary interview was arranged for 10 February; that was arranged by a letter of 24 January and that letter of 24 January includes this sentence (with fresh emphasis):

"You are reminded that this is regarded as an extremely serious matter which may lead to disciplinary action [and I emphasise the next three words] (including your dismissal) being taken."

That letter led to a disciplinary hearing on 27 February 1995, and at that hearing Dr Trivedi was represented by Mr David Carter of the BMA, the doctor's professional body.

At that hearing on 27 February there was read out, on the Trust's behalf, a statement of the Trust's case against the doctor. Echoing the letter of 9 January, the statement of case read out included that the employer/employee relationship was seriously damaged, arguably to the extent that it was irreparable. The statement of case included reference to the Trust's disciplinary procedures and enclosed a copy for the use of the disciplinary tribunal of an extract from that, giving examples of activity outside employment which could be regarded by the Trust as gross misconduct. The statement of case submitted that Dr Trivedi's activity came within that category but it was only a list of examples.

The disciplinary tribunal also was handed dictionary definitions of the word "fraud" and the word "false". They were given the newspaper cutting from the Yorkshire Post to which I have referred and they were also given a formal Convictions Disclosure sheet from the police that referred to the doctor's conviction.

Dr Trivedi's advisors would have heard the Trust's statement of case as it was read out. They would have thus heard reference to the newspaper article and to the list of examples. They may, or may not, have known of the dictionary references.

There is no suggestion in the papers, referred to in the statement of case, that there was any contact refused to Dr Trivedi or his advisors, any access to the papers that had been referred to. The position must be, at that stage, that a sight of those papers was not seen to be necessary, not seen to be worth asking - for on the part of Dr Trivedi or his advisors. There is no hint of any evidence that the defence of the doctor was embarrassed by the failure of the Trust to have handed out the papers earlier than that hearing on 27 February.

On 2 March 1995 Professor Bennett, who had chaired the disciplinary hearing, wrote to Dr Trivedi in the following terms:

"... you were summarily dismissed from your post of Clinical Assistant with effect from 27 February, 1995, on the grounds of gross misconduct for the following reasons:-

1 Although the charges do not directly relate to your employment with The Trust, they do revolve around patient care. The seriousness of the charges, together with the publicity surrounding the court case and the guilty verdict has adversely affected your standing as a medical practitioner which could undermine the confidence of both patients and colleagues.

2 You did not keep your employing organisation informed of your pending court case, nor the guilty outcome as required by the Terms and Conditions of Service.

3 Your conduct fell far short of that expected of a Medical Practitioner with The Trust. As a Clinical Assistant in the ENT Department you held a position of trust. The serious nature of the patient related charges and your failure to keep your Managers fully informed has seriously damaged that trust, and inevitably the employer/employee relationship, to such an extent that it is now considered to be irreparable."

That letter makes it plain as can be made that there was a dismissal. The letter also advised Dr Trivedi of his right to appeal. There was such an appeal and again Dr Trivedi was represented by his professional body, but it was not until after that appeal had been concluded that the papers, which I have referred to as having been before the original disciplinary tribunal, were given by way of copies to Dr Trivedi or his advisors (I say "or his advisors" because, strictly speaking, we have no evidence whether his advisors had received them earlier, but we certainly have evidence that Dr Trivedi had not received them earlier). I am prepared to proceed on the basis, in Dr Trivedi's favour, that his advisors had not previously seen them either.

Again, there is no suggestion in anything before us, or anything before the Industrial Tribunal, that a sight of the papers had been refused earlier so, again, Dr Trivedi and his advisors had presumably felt able to conduct the appeal without sight of the particular papers which, by now, they had known had been in existence and had been in the hands of the disciplinary tribunal since 27 February. We are not shown anything of substance about that appeal, but it must be that the appeal failed.

On 10 March Dr Trivedi made application to the Industrial Tribunal on the grounds of unfair dismissal and he put his complaint, as it then was framed, quite succinctly in four little very short sentences. On 6 April the Trust entered an appearance and gave its written grounds for opposing the application.

The hearing before the Industrial Tribunal took place on 4 September 1995. The Tribunal gave its reasons in extended form on 8 September and, as I indicated at the outset, it found that Dr Trivedi had been fairly dismissed. The following conclusions, as we see it, so far as is now relevant, emerged from the Industrial Tribunal's judgment. There are six short points.

Firstly, in its judgment, the Trust had, in the view of the Tribunal, satisfied the burden of proof upon it to show a potentially fair reason for the dismissal, namely misconduct.

Secondly, Dr Trivedi had been dismissed because the Trust was informed of his conviction on charges of fraud involving patient care.

Thirdly, the Trust had carried out a satisfactory investigation and had come to a genuine and reasonable conclusion that, on the balance of probabilities, the doctor had been guilty of the criminal charge.

Fourthly, the Trust's conclusion that the doctor should be dismissed was within the range of responses of a reasonable employer. It was self-evident, said the Tribunal, that a conviction as to fraud involving patient care could mean that the doctor would lose trust and confidence in him as an employee.

Fifthly, it was not appropriate for the Trust to await the outcome of the doctor's appeal against conviction. It was entitled to take it that he was, on the balance of probabilities, guilty as of course, the Criminal Court had decided against him on the basis of "beyond reasonable doubt".

Sixth and last, the Trust's procedure had been less than perfect because, as will have been clear from the history that I have given, before the hearing of 27 February 1995 the doctor had not been given copies of the documents relating to the case, especially the Trust's disciplinary procedure, but the Industrial Tribunal held that the doctor had been professionally represented there and at the disciplinary appeal and the shortcoming which they spoke of was not such, in their view, as to make the dismissal unfair.

On 29 September, Dr Trivedi invited Mr Hepworth, the Chairman of the Tribunal, to review the Tribunal's decision. On 13 October, the Chairman sent to the parties his decision not to review because, in his view, the review had no reasonable prospect of success.

In the meantime, on 10 October, Dr Trivedi had served a Notice of Appeal from the decision of the Industrial Tribunal. By this time four grounds were specified. I will not set them out, but they included matter that it could fairly be said was being raised for the first time.

On 23 February 1996, at a hearing at which Dr Trivedi was represented by Counsel, the Employment Appeal Tribunal ordered that Dr Trivedi's appeal should go to a full hearing but that it should be confined to items 2 and 3 of the amended grounds of appeal. Leave to amend the Notice of Appeal was granted. Presumably a draft form of amended grounds of appeal was before the Tribunal at the time.

On 29 March 1996 there was received at the Employment Appeal Tribunal from Dr Trivedi what were called "renewed grounds of appeal" divided between major grounds and other grounds, and it purported to raised matters beyond those permitted by the order of 23 February.

By 30 March, there had been prepared on Dr Trivedi's behalf amended grounds of appeal divided under three main headings. We take it that the items 2 and 3, as to which it had been ordered on 23 February 1996 that they might go to a full hearing, are the headings 2 and 3 of that particular formulation. The Trust gave a Respondent's answer on 2 April. There has been no appeal against the decision of 23 February 1996. The appeal before us is thus properly to be confined to the second and third headings of the amended Notice of Appeal.

A late affidavit is put in by Dr Trivedi, who, as I have mentioned, has appeared before us in person and no formal objection has been raised to it by Ms McNeill. We have, perhaps over-generously, considered it, but there is, in our view, nothing in it that assists Dr Trivedi in any relevant way, but it is to be noted that even in this late affidavit there is no allegation that a request for papers was made and declined at any earlier stage.

In the Appellants' skeleton, which is before us and which (I suspect) was professionally prepared, it is argued that the Tribunal misdirected itself in law in that it failed to pay sufficient heed to the absence of proper procedural safeguards.

Procedural shortcomings, needless to say, range from the totally insignificant to those that truly deny a just hearing on the merits. The Tribunal, in our view, is well qualified to place a given complaint of such a kind at its due point in the spectrum. It is a broad spectrum.

We have in mind that Dr Trivedi was clearly told of the Trust's concerns and the effect on his employment in the letter of 9 January 1995. We have in mind that he was professionally represented at the original disciplinary hearing on 27 February 1995 and at the appeal therefrom and, as it would seem, made no request, at any rate so far as the evidence reveals, that he should see papers or that his advisor should see papers, or that there should be an application for an adjournment for time to consider the papers. The papers that were supplied to the disciplinary tribunal were, to a large extent, glimpses of the obvious. The Trust statement of case, which was only one page long, was in any event read out. The newspaper cutting could hardly have taken Dr Trivedi by surprise. The list of examples of misconduct was only a list of examples. The disclosure as to the conviction was unarguable and again, could hardly have surprised anyone and the dictionary definitions were only glimpses of the ordinary meaning of words.

With that in mind, there was in our judgment, sufficient material upon which the Industrial Tribunal, properly instructing itself, could have concluded that the failure to supply the documents in time to Dr Trivedi was not enough to make the dismissal unfair.

That being so, no point of law is open to the Appellant in this particular part of his case. We are quite unable to make the jump which the Appellant's argument invites us to make from the fact that the papers relating to the disciplinary hearing were revealed late to the assertion that he was not aware of the nature of the case against him, or that he was put to any material disadvantage, let alone that he was so disadvantaged that he was unable properly to put his case. Nor can we accept that the Appellant was not aware of whether he was appealing against dismissal or misconduct or both, as the skeleton claims.

The letter of 2 March 1995 told him he was summarily dismissed and the earlier references I have cited from the letters of 9 January and 24 January and from the statement of case that was read out make it quite clear that the employer/employee relationship was at risk.

Another ground advanced before us was that the Trust should not have moved from the inevitable fact that Dr Trivedi had been convicted, as he had, to a conclusion that there had been an irretrievable breakdown in trust and confidence without that having been investigated. It is in the skeleton argument argued that that alleged consequence of the conviction should have been investigated rather than being taken to have naturally flowed from the conviction.

Plainly it is not every consequence of every act, that in all circumstances needs to be tested. There is a range within which the Industrial Tribunal (so to speak as a jury) is entitled to find that matters speak for themselves. The Industrial Tribunal was entitled to pay regard to the conviction. The conviction was at least arguably prima facie, an indication, given that the prosecution's case must be taken to have been proved, that Dr Trivedi was not only a cheat, but one who had put his improper monetary gain before the best interests of his patients.

It cannot, in our view, be said that a Tribunal of fact, charged with the task of looking to likely consequences, could not reasonably conclude that an irretrievable breakdown was in such circumstances possible, or indeed, likely to have taken place. In other words, the Industrial Tribunal had material on which a Tribunal, properly instructing itself could have concluded, as it did, firstly that the conviction was for a fraud involving patient care and secondly, that it was self-evident that such a conviction would lead to the Trust losing their confidence in the doctor as an employee. After all, questions as to a breakdown in trust and confidence between employer and employee are invariably matters of impression. It is an abstract question; one cannot detect it with a certainty of a break in a bone, or as if by a crack test in a metal housing It cannot be said that the original disciplinary tribunal of 27 February did not have it in mind. It was expressly referred to in the statement of the Trust's case read out and it is expressly referred to in the letter of 2 March which I have quoted from. The question as to the breakdown was thus posed in the presence of the doctor's professional advisor and it was answered in the disciplinary body's conclusion.

We do not fault the Industrial Tribunal for not requiring there to have been some special or separate investigation into what were, or would or might have been, or were likely to have been, the consequences of the conviction on trust and confidence as between employer and employee. So we find nothing in Dr Trivedi's favour in that head of complaint which is explored in his skeleton argument.

Dr Trivedi also asserts that there was perversity on the very face of the Industrial Tribunal's decision. This, as we see it, is what one might call an action replay of the complaint as to his not receiving papers relating to the case as early as, in a better organised world, he would have done.

We have already indicated our view that the Industrial Tribunal's conclusion that the procedural shortcomings did not make the dismissal unfair, was a view to which the Industrial Tribunal could properly, on the facts, have come. One might quibble with whether the Appellant was given every opportunity, but there is no inescapable conflict between the Industrial Tribunal's findings firstly, that the doctor had been given every opportunity (meaning at least sufficient opportunity) to put forward his case and to argue in mitigation and secondly, that he got the papers late. He knew the outline of the plain case against him by correspondence before 27 February; he had the Trust statement of case read out on 27 February; the opportunity to obtain papers existed at least from the moment when the statement of case was read out on 27 February.

All in all, having given the matter the best attention we can, we dismiss the appeal.