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Decision date: 18 May 2012
The dismissal of an employee by a Trust was held not to be a determination of a civil right of an employee within the meaning of Article 6. Further, independent professional advice was not needed in a case where the allegations did not involve any medical skill or expertise.
The appellant consultant cardiologist (M) appealed against the decision of the High Court which had upheld his dismissal by the Defendant NHS Trust (‘the Trust’). In 2002, M was suspended from his post on disciplinary grounds. The disciplinary hearing in relation to those matters was not held until 2007, the outcome being a six month backdated warning. Given the length of time that M had been out of practice it was necessary for him to re-skill.
There was a dispute as between M and the Trust as to what re-skilling was necessary. M accordingly refused to sign the Trust’s Action Plan. M’s behaviour in this respect led to further disciplinary proceedings against him, one of the allegations being that he had repeatedly refused to cooperate with the re-skilling process and had rendered himself unmanageable.
Andrew Hardy, Chief Executive of the Trust, chaired the disciplinary hearing. That hearing was postponed on six occasions at the request of M. A seventh request to postpone the matter was refused by Andrew Hardy and the matter proceeded in M’s absence.
The Trust's disciplinary procedure stated that, where a case involved issues of professional conduct, the panel had to include a medically qualified member. M's panel did not include such a member on the basis that it was a matter of non-clinical conduct.
Andrew Hardy found that M’s refusal to sign the Action Plan was not reasonable, amounted to gross misconduct and that he should be dismissed without notice.
M appealed to an Appeal Panel, comprised of three experienced professionals who had no involvement with the Trust. The Panel rejected all of M’s grounds of appeal.
It was contended by M before the High Court that:
a) the allegations against him were professional conduct issues and as such the Trust’s Disciplinary Procedure required the Trust to seek independent professional advice during the investigation and when Andrew Hardy considered the question of dismissal he should have had the benefit of a medically qualified member independent of the Trust;
b) the Trust was in breach of contract by not adjourning the misconduct hearing which led to his dismissal;
c) the dismissal process and appeal was a determination by the Trust of a civil right of M and was thus subject to requirements of Article 6.
It was held that the Trust had correctly concluded that the allegations against M were not professional misconduct so as to need an independent medically qualified person, that Andrew Hardy was entitled to refuse to adjourn the hearing and that there had been no breach of Article 6. M appealed these findings.
The appeal was dismissed. Stanley Burton LJ gave judgement for the Court of Appeal, holding that:
a) ‘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’;
b) Andrew Hardy’s decision not to adjourn the hearing was a rational response to a difficult situation, in circumstances where it was appropriate for the matter to be determined expeditiously;
c) M’s Article 6 right to lawfully practise his profession was not engaged because the Trust’s decision to dismiss M did not affect his right to practice his profession elsewhere; he was not rendered unemployable.
A Trust’s decision to dismiss a practitioner which does not render them unemployable does not engage their civil right to lawfully practise his profession. R (on the application of G) v X School Governors  UKSC 30 was affirmed.
By Lucy Alicea
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