United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0075/15/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

At the Tribunal

On 8 January 2016

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

 

 

 

NORTHAMPTONSHIRE HEALTHCARE NHS FOUNDATION TRUST APPELLANT

 

 

 

 

 

DR M CHAWLA RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR ED MORGAN (of Counsel) Instructed by: Hempsons Solicitors The Exchange Station Parade Harrogate North Yorkshire HG1 1DY
For the Respondent	MR D WELCH (of Counsel) Direct Public Access

 

 

SUMMARY

UNFAIR DISMISSAL - Reasonableness of dismissal

 

The ET having found the Respondent’s dismissal of the Claimant - a Consultant Psychiatrist in its employment - on three charges of gross misconduct was unfair, the Respondent appealed.

 

On the first charge, the ET had concluded that the Respondent had previously addressed the patients’ complaints in issue and there were no “exceptional circumstances” making it reasonable to raise previously determined matters in this context.

 

The ET thereby failed to apply section 98(4) in a straightforward way; the band of reasonable responses did not require the importation of a higher test of “exceptional circumstances”.  The question for the ET was simply whether it was fair to institute the second set of proceedings (per Elias LJ at paragraph 56 of Christou and Anor v London Borough of Haringey [2013] IRLR 379 CA).  Having acknowledged that the doctrines of res judicata and estoppel were “not strictly applicable”, the ET had proceeded to assume those doctrines provided the answer in this case.  It failed to allow that the process in question - the internal HR process - might be different in nature to the response to a patient complaint and failed to consider the evidence (accepted by the Claimant in evidence) that the internal HR process had never been closed but had expressly been left open and only delayed because of subsequent complaints.

 

On the second charge, the ET had been concerned with the Respondent’s conclusion that the Claimant had made contact with a vulnerable adult patient on Facebook.  The difficulty was that the ET elided “contacted a patient via Facebook” (the charge) with “initiating contact”.  The former did not necessarily imply the latter.  The more general framing of the charge - the inappropriate use of social media in relation to a patient - did not suggest that the Respondent was contending the Claimant had necessarily initiated the contact.  That being so, the ET’s conclusion could not stand.  Substantively, it could not sensibly be suggested that the Respondent did not have a reasonable belief in this regard, there were plainly reasonable grounds for that belief (not least as the contact was admitted by the Claimant), and the ET’s criticisms of the investigation were founded upon its erroneous interpretation of the charge and could not save the finding.

 

The third charge was really one of failing to obey a reasonable management instruction.  The ET therefore needed to consider (1) what instruction had been given to the Claimant and (2) whether that was a reasonable instruction (which might give rise to the need to make a finding as to contractual rights of the parties).

 

The ET’s approach appeared to assume that the instruction could only have been given by a member of the Respondent’s “medical hierarchy”, specifically by the case manager under MHPS.  The Reasons did not explain why the case manager might not give direction to the practitioner through others.  The ET also characterised the Respondent’s direction as the expression of an opinion rather than an instruction, but there was no sensible basis for that construction.

 

As for the Respondent’s right to give the instruction this was not a matter that the Claimant had put in issue.  The ET had, further, failed to consider the Respondent’s more general case that the Claimant had a general obligation of co-operation (an approach consistent with the language of MHPS) and had not demonstrated engagement with the circumstances, which included the apparent understanding of both the Respondent and the Claimant that this had been a reasonable requirement.  The appeal would be allowed.

 

HER HONOUR JUDGE EADY QC

 

Introduction

1.                  I refer to the parties as the Claimant and the Respondent as below.  This is the Respondent’s appeal against a Judgment of the ET sitting at Huntingdon (Employment Judge Moore sitting alone on 1-3 April and 24 October 2014; “the ET”), sent to the parties on 11 December 2014.  The parties were represented by counsel before the ET and on appeal, albeit different counsel on each occasion.  By its Judgment the ET upheld the Claimant’s claim of unfair dismissal.  The Respondent’s appeal was permitted to proceed after an Appellant-only Preliminary Hearing before HHJ David Richardson earlier this year.

 

The Background Facts

2.                  The Claimant is a Consultant Psychiatrist employed as such by the Respondent from April 1996 until his dismissal on 20 September 2013.  It seems there were no difficulties for the first 12 or so years of the Claimant’s employment but, in or about 2008, issues arose concerning his communication style with patients and he was sent on a course to improve his communication skills and underwent a period of mentoring (concluded by February 2010).

 

3.                  During 2012, allegations were made against the Claimant by a colleague to the effect that he had made racist comments.  That led to the Claimant being excluded from the workplace for some 12 months, pending the investigation into those matters, although ultimately the disciplinary charge against the Claimant in respect of that complaint was dropped.  In October 2012, whilst the Claimant remained excluded, he was invited to an investigation interview, which, it transpired, related to further issues concerning the Claimant’s communications with patients.  One such related to patient, AS, who had raised an issue about the Claimant in November 2011 and had received a response under the Respondent’s complaints procedure from its Chief Executive in December 2011.  Another related to patient B, whose wife had written to the Respondent about the Claimant in April 2012 and who had received a response from the Respondent’s Chief Executive at the end of that month.

 

4.                  Also in October 2012, the Claimant was told of an allegation that he had contacted a vulnerable patient (patient C) via Facebook.  At an investigatory meeting in December 2012, the Claimant acknowledged responding to an inbox message (not knowing who the sender was) and that, when apparent this was from patient C, he had subsequently confirmed he was on leave and had given his personal email address.  Shortly thereafter the Claimant’s email account was hacked, and he adduced evidence to show that persons within his contact list had received suspicious emails purporting to come from him; this being his explanation for an invitation to patient C, apparently emanating from the Claimant, to join a dating website.

 

5.                  Around this time, also in October 2012, the Claimant contacted the Respondent’s HR Department to make various requests as to what he might be able to do during his period of exclusion.  The response (by letter of 8 October 2012) from the Respondent’s Assistant Director of HR, Mr Cooper, referred to having discussed, with the case manager appointed under the Maintaining High Professional Standards Procedure (“MHPS”), Dr O’Neill-Kerr, a request from the Claimant that he be able to work in the private sector whilst excluded.  The response was, “we both agreed this would be inappropriate”.  On 16 November 2012 the Claimant emailed the Respondent again, asking whether he might do some medical assessments on a private basis.  The response from the Respondent’s Dr Scanlon referred to having consulted Dr O’Neill-Kerr and the relevant investigator, Ms Martin, and stated:

“The Trust view is that given the nature of the allegations subject to investigation partly relate to the protection of patients you should not be seeing any patient either within the NHS or privately until the investigation is completed.”

6.                  In April 2013, the Respondent raised with the Claimant the allegation that he had, on at least three occasions, worked in his private practice during the period of exclusion.  The Claimant’s response was that he had thought the restriction upon him had only been that he should not take any patient under his care. 

 

7.                  On 10 July 2013 the Claimant was invited to attend a disciplinary investigation, which took place in September 2013.

 

8.                  Before the disciplinary panel the Claimant was represented by counsel and solicitors who specialise in medical defence work and on advice chose not to give evidence or to be questioned.  He did, however, submit a statement, which was taken into account. 

 

9.                  On the basis of the material before it, the disciplinary panel concluded the Claimant was guilty of gross misconduct in respect of the following matters: (1) he had been unprofessional in his behaviours during consultations with patients, two of whom subsequently complained; (2) he had made inappropriate use of social media in relation to a patient, crossing professional boundaries and demonstrating inappropriate treatment in that he had (a) contacted a patient via Facebook and (b) (albeit this was found only to amount to misconduct) invited a patient to join a dating website (the specific finding being that, although the panel was unable to conclude that the Claimant had personally sent the invitation to the patient, he had kept her email address in his personal email address account and so allowed the risk of such an issue arising if, as he contended had happened, his email account was hacked); and (3) he had provided Mental Health Act assessments at another hospital during the period of exclusion from the Respondent Trust after specifically having been advised not to have patient contact because of the nature of the allegations being discussed.  The panel concluded that the appropriate penalty was that the Claimant should be summarily dismissed.

 

10.              The Claimant appealed.  His appeal was heard by the Chairman of the Respondent Trust and two others but was dismissed and the original decision confirmed.

 

The ET’s Conclusions and Reasoning

11.              The ET’s self-direction on the law is set out within its conclusions.  It correctly identifies the basic statutory structure underpinning the protection against unfair dismissal, as afforded by section 98 of the Employment Rights Act 1996 (“ERA”).  On the question of the reason for the dismissal the ET records that:

“28. … The reason they [the Respondent] rely upon and have sought to prove is a reason related to conduct. …”

 

12.              It is not made clear whether the ET actually found that the Respondent had made good that reason, and, as will be seen below, on certain of the charges it might be implied that it did not.  In any event, the reasoning then goes on to consider the question of fairness for the purposes of section 98(4) ERA in respect of each of the specific charges relied on by the Respondent.  For clarity, I note the ET’s reasoning continues to refer to the original numbering of the charges, one of which was dropped before the disciplinary hearing.  Adopting the approach of the parties, I refer to each by the numbering used by the Respondent’s disciplinary panel.  For practical purposes, this means that the ET’s charge 2 becomes charge 1 and so on.

 

13.              In approaching its task in this regard the ET considered this was a case that:

“29. … demanded, in all respects a careful and thorough investigation.  The charges were grave and had the potential not only to result in dismissal but also to seriously inhibit or end [the Claimant’s] ability to practice [sic] his profession. …” 

 

See Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA.

 

14.              In respect of the first matter relied on by the Respondent the ET noted that the charge related to old matters, commenting that delay alone could render a dismissal unfair (RSPCA v Cruden [1986] ICR 205 EAT), albeit the ET did not state whether it had done so in this case.  More specifically, it considered:

“30. … The complaints which underlay this charge were investigated by the Trust’s Chief Executive in or around December 2011 and April 2012 and a conclusion reached. …”

 

15.              As there were, applying Christou and Anor v London Borough of Haringey [2013] IRLR 379, no exceptional circumstances making it reasonable to raise previously determined matters in this context, the ET considered this unfair.  Recording the Respondent’s case that these matters were not previously addressed as disciplinary matters but only as a response to patient complaints, the ET disagreed:

“31. … There is no doubt that the Claimants [sic] conduct was considered and addressed. … The Respondents [sic] did not act reasonably in resurrecting these matters. …”

 

16.              The ET also observed in the alternative (strictly obiter) that there had not been a reasonable investigation in respect of the matters raised by this first charge:

“31. … There had been no attempt whatsoever to obtain witness statements from the patients, or otherwise to ascertain detail from them.  The Respondent took no steps to verify the truth of their assertions and no mechanism was employed to enable the Claimant to do so. …”

 

17.              On the second charge found proven by the disciplinary panel, the ET considered it unfair that material had been introduced at the disciplinary hearing that had not been part of the actual charge.  On the Facebook contact question - undoubtedly part of the charge against the Claimant - the ET noted the Claimant had said he had responded to a contact; it considered the Respondent had failed to investigate this and thus the investigation fell:

“33. … outside of the bands of reasonable [sic] and I do not find the Respondent to have had a reasonable belief that the Claimant contacted patient C.”

 

18.              More generally, the ET found the panel had received advice from an independent medical adviser who was present and that adviser had given advice in private without permitting the Claimant to respond and that also was unfair (paragraph 23), albeit this is not a matter that seems ultimately to have fed into the ET’s conclusions.

 

19.              On the second aspect of the second charge, the dating website invitation, the ET’s reasoning is as follows:

“34. … In the light of … unambiguous recitation of the panel’s finding that ‘the panel could [not] determine whether [the Claimant] personally had initiated the TWOO’invite [sic].  Their subsequent conclusion that the charge that he invited a patient to join cannot be a reasonable belief [sic].” (Original emphasis)

 

20.              On the third charge the ET recorded that the Respondent:

“35. … has chosen not to call any member of the medical hierarchy and there is no evidence before me that the Claimant was barred from working in his private practice or that the Respondent had any such power. …”

 

21.              Accepting that the Claimant had acknowledged receipt of the email from Dr Scanlon (cited above), the ET concluded that it merely offered an opinion rather than giving an instruction and that the Department of Health’s MHPS did not empower the Respondent to give such an instruction in any event.  More generally, the ET considered the Respondent had failed to have regard to the provisions of MHPS and concluded that a reasonable employer in the same circumstances as the Respondent - where particular processes are mandatory - would have adhered to those processes; the decision to dismiss on this ground was unreasonable. 

 

22.              The ET further found the internal appeal did not rectify these matters.  On the other hand, it did agree that the Claimant had contributed to his dismissal by choosing not to give an oral account of his version of events and declining to be question by the disciplinary panel.  Further, although the investigation was insufficient to support a reasonable belief that the Claimant had contacted patient C, he did not immediately bring contact to an end but offered his personal email address.  Having made those observations, the ET allowed that the parties should have a further opportunity to address those points at the Remedy Hearing.

 

The Grounds of Appeal

23.              On the matters raised by the first charge, the Respondent contends: (1) the ET wrongly applied an “exceptional circumstances” test rather than adhering to section 98(4), and (2) the ET erred in failing to allow that the incidents involving patients AS and B had been dealt with under the patient complaint procedure and not the disciplinary process, which remained outstanding (as the Claimant was well aware and acknowledged in cross-examination).  On the second charge: if the ET considered the additional material introduced during the disciplinary hearing to be relevant, it had been wrong to do so, given the disciplinary panel had not taken it into account.  Moreover (1) the ET was wrong to find there was no evidence that the Claimant contacted patient C; and (2) the ET’s finding on the second aspect of the charge, the dating website point, was unclear.  On the third charge: the ET was wrong to conclude that the Respondent had no power to instruct the Claimant not to undertake private work.

 

Submissions

The Respondent’s Case

24.              On the matters raised by the first charge, the Claimant himself had not put his case as high as the approach adopted by the ET suggested.  He had complained he had not been put on notice that matters dealt with under the complaints procedure would be revisited.  That was the subject of exploration in cross-examination, when he accepted it was still necessary to deal with those matters under the HR procedures; the complaints procedure was not an end of it.  He had agreed he had known this at the time and was aware the HR process in that regard had been overtaken by events in relation to other complaints made against him and remained outstanding.  These were not matters dealt with by the previous communications training and mentoring - they were new - and so there had been no previous disciplinary process in respect of these particular complaints.  More specifically, it had been no part of the Claimant’s case before the internal disciplinary and appeal panels that he had been given any basis for thinking that he would not face disciplinary charges in respect of the patient complaints.  To the extent the ET had left it open that the Respondent’s reliance on this charge was rendered unfair by delay, the Claimant in evidence had further expressly stated he was not concerned by the delay.

 

25.              On the second charge, this related to social media contacts with patient C, a vulnerable adult patient.  The actual charge was of making inappropriate use of social media in relation to a patient and crossing professional boundaries.  The contact on Facebook was the first example of this.  On that first aspect of the charge the ET had wrongly adopted too narrow a focus.  The charge was not limited to simply initiating contact, which is how the ET seemed to have read it, and there was plenty of evidence to support the Respondent’s conclusion that the Claimant had had contact with patient C on Facebook; that had not been in issue.  The ET’s erroneous approach rendered its decision unsafe.  Its criticisms of the Respondent’s investigation went to the question of initiation of contact not to the actual matter charged.  On the second aspect of the charge, it might not be right to say the ET’s conclusion was unclear, but it did not actually relate to the Respondent’s conclusion.

 

26.              On the third charge, the ET was wrong to conclude that the Respondent had no power to instruct the Claimant not to undertake private work.  Its right to do so was acknowledged by the Claimant by his communications with the Respondent about undertaking other work during his exclusion.  It was the Claimant (when assisted by specialist legal advisers) who initiated the request to undertake other work; he did not consider he had a right to do so.  The Respondent’s responses made clear it would be inappropriate.  Notwithstanding that, the Claimant did work privately; when the matter was raised he suggested the response had been ambiguous, but he had not originally said, nor sought clarification.  The Respondent had been entitled to expect co-operation from the Claimant as a Consultant in its employment.  It was also entitled to take a view as to the credibility of his response that he had misunderstood the position.  It was not the Claimant’s case that the Respondent had no power to instruct him not to undertake private work; his ET1 characterised the finding on this charge as harsh, not impermissible.  In evidence before the ET, he acknowledged it was “Clear [I] couldn’t work for private provider”, and in relation to a private work at another hospital “I accept [I] shouldn’t have done”.

 

27.              The ET failed to have regard to the Claimant’s contractual duties to co-operate with the Respondent as his NHS employer.  Even if entitled to think MHPS did not clearly permit the Respondent to place restrictions on the Claimant’s private practice without his agreement, here the correspondence demonstrated there was a consensus that it was entitled to do so, hence the Claimant’s requests; it was within the band of reasonable responses for the Respondent to consider there was such a consensus.  As the Respondent was the Claimant’s principal employer (thus the designated body for the purposes of the regulatory regime laid down by the Medical Professional (Responsible Officers) Regulations 2010 (“the 2010 Regulations”)), it had to appoint a responsible officer to stand between it and the Claimant’s professional regulatory body, the General Medical Council (“GMC”).  If there had been any dispute on the issue of his undertaking other work during his exclusion, the issue would have had to have been referred to the responsible officer.  That must mean that there was a contractual obligation on the Claimant to co-operate with the Respondent in this way.

 

28.              Paragraph 17 of the ET’s findings seemed to suggest that Dr O’Neill-Kerr had not given the instruction, as recorded in the letter from HR of 8 October 2012, and, by implication, that HR’s communication of the instruction was insufficient.  As for the email from Dr Scanlon of 18 December 2012, the ET seemed to think this could not be a valid instruction if Dr Scanlon was not the responsible officer under the 2010 Regulations and also that the email expressed an opinion rather than an instruction, albeit this had to be seen in the context of a communication to an existing professional employee.  In any event, the Claimant himself had plainly understood the nature of the communication and had not raised it as being in issue and so it had been unnecessary for the Respondent to call members of the “medical hierarchy”.

 

29.              Paragraph 35 displayed an error in considering whether the Claimant had been “barred from working in his private practice” rather than whether he had been given a reasonable instruction in that regard.  The ET should have considered whether the Respondent’s conclusion on this matter - given the Respondent believed a reasonable instruction had been given and the Claimant was not taking issue with that - was within the band of reasonable responses.

 

The Claimant’s Case

30.              On the first charge, the Claimant submitted that the ET had found the matters concerning patients AS and B had already been concluded within a reasonable period of time.  The Respondent’s response to the patients indicated that the matters raised would be “addressed by supervision”; that was its position at the time.  Moreover, there was no reference to unprofessional behaviour towards the patients in the Respondent’s minutes of an earlier meeting with the Claimant.  The ET had been entitled to conclude the Respondent did not have a genuine belief in the seriousness of the issues raised by this charge.  Although the ET did not make a specific finding as to the fairness or otherwise of the raising of these matters after such a delay, it had found the Respondent had given no explanation for the resurrection of these issues under a disciplinary process.  In the alternative, the ET had found there was no further investigation of the patients’ complaints for the purposes of an internal disciplinary process, although the procedure made provision for the taking of evidence from patients in precisely these circumstances and the ET had plainly seen this as unfair as well.

 

31.              On the second charge, the ET addressed this at paragraph 33.  Accepting that initiating contact would be a different and more serious matter than simple contact (i.e. communication with the patient) would be, and also accepting that the ET appeared to have elided the two in the concluding sentence at paragraph 33 (which would be wrong), the reasoning generally seemed appropriate to the actual charge relied on against the Claimant, and crucially the ET had found the process was rendered unfair by the Respondent’s failure to properly investigate.

 

32.              On the third charge, the responsible officer regime did not replace the GMC and had no role under MHPS.  In truth, the 2010 Regulations had no real relevance to the issues before the ET.  MHPS included provision for informing other organisations but did not go further than that.  On the contrary, the requirement in that regard (paragraphs 27 and 28 of MHPS) was only on the practitioner who has faced restrictions on their practice by their NHS employer to agree not to undertake any work “in that area of practice with any other employer”.  That could not apply to self employed private practice, only to employed NHS or private work.  The ET had reached permissible conclusions both on the question of whether the instruction had been given (a finding of fact for the ET) and on the contractual entitlement of the parties in this regard.

The Relevant Legal Principles

33.              The starting point is section 98 ERA 1996, which, relevantly, provides:

“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it -

…

(b) relates to the conduct of the employee,

…

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

 

34.              The structure of the statutory regime thus requires the ET first to make a finding as to whether the employer has established the reason for the dismissal.  That requires a finding as to the collection of facts subjectively operating on the employer’s mind at the relevant time and as to whether that falls within one of the statutorily permissible reasons.  It will be having regard to that reason that the ET will go on to determine whether the dismissal was fair or unfair, on which the burden of proof is neutral between the parties.  At this stage the test to be applied is that of the band of reasonable responses of the reasonable employer in the relevant circumstances, which will include its size and administrative resources.  That question is to be determined in accordance with equity and the substantial merits of the case. 

 

35.              Where the reason for dismissal relates to the employer’s conduct, guidance as to the ET’s task is as laid down (with necessary changes to reflect the amendment to the burden of proof) in BHS Ltd v Burchell [1978] IRLR 379 EAT.  If the ET is satisfied the Respondent has made good its honest belief in a potentially fair reason for dismissal, it will go on to consider whether there were reasonable grounds for that belief and whether there was a reasonable investigation.  In approaching these questions it will generally not be apt to import doctrines of res judicata or abuse of process when considering two sets of disciplinary proceedings initiated by an employer.  Where a second disciplinary process should not have been carried out, however, that will be relevant to an ET’s consideration of the question of fairness for section 98(4) purposes (see Christou per Elias LJ).

 

36.              More generally, however, the ET must guard against falling into what has been called the substitution mindset (see London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA).  On the other hand, where an ET goes about its task correctly, reaching conclusions open to it based on its permissible findings of fact, the appellate court must itself be astute not to interfere with what is a matter of assessment or evaluation for the first instance Tribunal.  Moreover, where on a perversity appeal, the high test to be applied is laid down in Yeboah v Crofton [2002] IRLR 634 CA: the decision in question must be almost certainly wrong.

 

Discussion and Conclusions

37.              I proceed, as the ET’s reasoning does, on the basis that it is appropriate to consider each of the three relevant charges separately, before looking overall at the conclusion that the decision to dismiss was unfair. 

 

38.              On the first charge the ET made no actual finding that delay rendered the decision to dismiss unfair in this case; that point was unresolved, although I note the Claimant’s apparent concession in cross-examination that this was not a matter of concern for him.  The ET did, however, conclude that the Respondent had previously decided that the matters raised on the complaints made in respect of patients AS and B were to be addressed by supervision.  The ET considered that only “exceptional circumstances” would then warrant the Respondent resurrecting these matters as part of a disciplinary process.  That is a reference to a passage from the speech of Lord Millett in Johnson v Gore Wood & Co [2002] 2 AC 1 HL, cited in Christou, addressing the distinction between the doctrines of res judicata and abuse of process.  On this point, I agree with the Respondent: the ET’s self-direction fails to apply section 98(4) in a straightforward way; the band of reasonable responses test does not require the importation of a higher test of exceptional circumstances.  The question for the ET was simply, as Elias LJ expressed it in Christou (see paragraph 56 of the IRLR report) whether it was fair to institute the second set of proceedings.

 

39.              Whether the ET erred in this regard then requires an analysis of its approach to the facts of this case.  The Respondent’s case was that the previous decision and response on those complaints was merely the Chief Executive’s response to the patients themselves; it was left open for it to consider these matters against the Claimant as part of an internal disciplinary process.  And, as Mr Welch fairly accepted in oral argument, an employer is not estopped from pursuing a matter in a disciplinary process simply because it has made an external statement to a complainant on the point.  The real issue in this case was whether the Claimant had been treated unfairly.  Had he, for example, been assured that no further action would be taken on these complaints, or had so much time passed that he had reasonably concluded it had been resolved?  Those kinds of questions will, of course, be for the ET as the Tribunal of fact.

 

40.              In this case, however, I cannot see that the ET engaged with the issues of fairness in this way.  Taking the view the Respondent had to show there were “exceptional circumstances” warranting the resurrection of these matters, the ET considered that a finding adverse to the Claimant on this charge could not be reasonable, because no exceptional circumstance had been shown.  Although it had acknowledged that the doctrines of res judicata and estoppel were “not strictly applicable”, the ET went on to assume those doctrines provided the answer to this case; failing to allow that the process in question - the internal HR process - might be different in nature to the response to a patient complaint (so, no estoppel at all; a different question for the Respondent given a different context).  It failed also to consider the evidence - accepted by the Claimant in cross-examination - that the internal HR process was closed but was expressly left open and only delayed because of the subsequent complaints.

 

41.              In my judgment, this error in approach goes to the heart of the ET’s conclusion on the first charge.  I have considered whether it might still be saved on the alternative, obiter, finding that the investigation process followed was unfair, but that is difficult given the ET’s apparent starting point and failure to engage with the question as to what had been communicated to the Claimant on this issue (so, for example, whether his involvement in the responses to the patient complaints had been seen as part of the investigation process).  The criticisms of the Respondent made by the ET might be valid but I do not consider the alternative basis of reasoning permits me to uphold the overall conclusion of unfairness in respect of this charge.

 

42.              I turn then to the second charge.  On the first aspect of this, the ET’s focus was on the Respondent’s conclusion that the Claimant had made contact with patient C.  As the findings of fact recognise, on any account the Claimant responded to patient C, even if - on his case - he was not initially clear who had sent him the invitation.  The difficulty is that the ET elided “contacted a patient via Facebook” (the charge) with “initiating contact” but the former does not necessarily imply the latter.  Certainly, the more general framing of the charge - the inappropriate use of social media in relation to a patient - does not suggest that the Respondent was relying on the Claimant having instigated the contact.

 

43.              Once, however, it is recognised that the charge was simply of making contact, in the sense of having contact with a patient via Facebook, then it is apparent that the ET’s conclusion on this charge cannot stand.  It could not sensibly be suggested that the Respondent did not have a reasonable belief in this regard and there were plainly reasonable grounds for that belief (aside from the actual copies of the messages, the contact was admitted by the Claimant).  In fairness, Mr Welch has acknowledged the difficulty in seeking to uphold the ET’s conclusion in this respect.  In oral argument he sought to fall back on the ET’s more general criticisms of the Respondent’s investigation on this charge.  The problem with that, however, is that the investigation points being made by the ET related to the issue of patient C’s credibility, but, once it is understood that the charge was of contact and not initiating contact, then no issue in fact arose as to her credibility.  The questions for the ET were really about proportionality and reasonableness of sanction.  I am thus unable to see that this conclusion can safely stand.

 

44.              As for the second part of the charge, it is difficult to make sense of the ET’s reasoning at paragraph 34, but I am not sure where the point goes in any event.  The ET seems to be criticising the Respondent for a finding that it never made.  As the point was not relied on as justifying the dismissal, I shall move on to the more general ET findings. 

 

45.              More generally, on the additional material adduced before the disciplinary panel it is unclear that the panel placed any reliance on it.  If it had and that was material to the decision reached, the ET might have been entitled to find that unfair, but it would have needed to have made clear findings and properly explain the nature of the unfairness.  If something is raised but ignored by the panel, it is hard to see that any material unfairness arises.  Certainly, I am unable to see any of the broader findings can rescue the ET’s conclusions on the second charge.

 

46.              The third charge was really one of failing to obey a reasonable management instruction.  The ET needed to first consider what instruction had been given to the Claimant and, second, whether that was a reasonable instruction, something that might give rise to the need to make a finding as to the contractual rights of the parties. 

 

47.              On the first question, the ET appears to have assumed that the instruction could only have been given by what it refers to as a member of the “medical hierarchy”; specifically, the case manager under MHPS.  Whilst MHPS makes specific provision for the case manager to take action if she or he considers an undertaking by a practitioner not to work elsewhere has been breached (paragraph 28), I am unable to read that as meaning the case manager might not give a direction to the practitioner through others.  In this case, I am unable to understand why the letter of 8 October 2012 was not found to be a communication by Mr Cooper from the case manager (a point that had not even been put into issue by the Claimant); certainly, the ET’s Reasons do not explain why it was not.  A similar question arises in respect of the subsequent email, which expressly refers to Dr Scanlon having had communication with Dr O’Neill-Kerr.

 

48.              As for the nature of the instruction, I am unable to see why the ET construed that as an expression of opinion rather than instruction.  I can see it would be relevant to ask whether the position might - as the Claimant suggested - have been ambiguous and, so, to test the Respondent’s response on standard of the band of reasonable responses in the light of any such ambiguity, but I am unable to see a sensible basis for construing the two communications with the Claimant as simply expressions of opinion. 

49.              When expressing its conclusions on this charge the ET’s focus seems to have been on the second issue: whether the Respondent had the power to give such an instruction.  The difficulty is that this was not a point put in issue by the Claimant himself.  Certainly, the fact that he wrote to the Respondent seeking its consent to work in the private sector seems to be an implicit acknowledgement that it was entitled to require him not to do so during his exclusion.  Furthermore, his position both during the internal process and before the ET was not that the Respondent did not have this power; indeed, at the appeal stage (at a time when he was represented by specialist lawyers) he expressly acknowledged he should not have undertaken the work in breach of the Respondent’s communication.

 

50.              The ET seems to have become confused by what it might have seen as competing provisions of the MHPS and 2010 Regulations.  Perhaps Mr Welch has some justification in his observation that an overly detailed reference to the latter provisions might have been somewhat confusing.  The Respondent’s more general way of putting its case was, however, that the Claimant had a general contractual duty of co-operation with his employer.  More specifically, given that it was the designated body under the 2010 Regulations, the Claimant was bound to co-operate with the Respondent in ensuring compliance with the regulatory provisions and that he was acting in personal compliance with his professional obligations.   That general duty of co-operation is consistent with the language of MHPS, which states that the practitioner should agree with her or his employer not to undertake other work (paragraph 27).  It is also consistent with the Claimant’s own requests to the Respondent. 

 

51.              The ET concluded, however, that there was:

“35. … no evidence before me that the Claimant was barred from working in his private practice or that the Respondent had any such power. …”

 

52.              This conclusion simply failed to have regard to the broader, less combative way of expressing the contractual obligation and to engage with the evidence in this respect.  More generally, in considering whether the Respondent had reached a conclusion falling within the band of reasonable responses that the Claimant had disobeyed a reasonable management instruction, the ET had to engage with the relevant circumstances.  These included the apparent understanding of both Respondent and Claimant that this was a reasonable requirement.  The ET’s reasoning fails to demonstrate that it asked the right question in this regard and I cannot see that the conclusion on this third charge can stand.

 

53.              More generally - and standing back from the individual charges - I bear in mind the ET was critical of the Respondent’s processes in ways that might be relevant to the overall question of fairness.  I am, however, unable to see that those criticisms can be said to be safe given the errors of approach identified in respect of each individual charge.  In those circumstances, I must allow the appeal and rule this Judgment be set aside.

 

Disposal

54.              Having given my Judgment, I permitted the parties to make further representations on the question of disposal.  The Respondent says there is only one answer: that it was entitled to rely on the findings of gross misconduct (taken together or separately): on the substantive matters raised by the charges there was no real dispute between the parties and the EAT can therefore properly substitute its own view that the decision to dismiss was fair; if not prepared to substitute, then I should remit to a freshly constituted ET.  For the Claimant, Mr Welch says it is impossible to say that there is only one answer, there were some differences between the parties on the evidence and I should remit this matter to an ET to resolve those differences, albeit that he is in agreement it would need to be to a different ET.

55.              In considering whether it would be appropriate to substitute my view for that of the ET, I bear in mind the guidance given by the Court of Appeal in Jafri v Lincoln College [2014] EWCA Civ 449.  Even if I felt there was some force in the Respondent’s position on the substantive charges, there are issues of fairness that might go to certain aspects of the investigation process here and I am not satisfied there is necessarily only one answer not least as the Claimant raised issues that might not have been fully dealt with because of the ET’s approach.  I am, therefore, bound to remit this matter to the ET.

 

56.              Doing so, and having regard to the criteria set out in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763, it seems to me that the parties are correct that the more satisfactory course is that this matter should be remitted to a differently constituted ET to be heard afresh.  I have made substantive criticisms of the ET’s approach in this regard, and it seems that the right course is to enable a different Employment Judge to come to this matter without the baggage of the previous findings.  On remission, the new ET should make its own findings and reach its own conclusions.