Idu v East Suffolk & North Essex NHS Foundation Trust, Court of Appeal - United Kingdom Employment Appeal Tribunal, November 08, 2018,  UKEAT 0015_18_0811
|Resolution Date:||November 08, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Idu v East Suffolk & North Essex NHS Foundation Trust|
Appeal No. UKEAT/0015/18/DA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 25 October 2018
Judgment handed down on 8 November 2018
THE HONOURABLE MRS JUSTICE SIMLER DBE
SHAREEN IDU APPELLANT
EAST SUFFOLK & NORTH ESSEX NHS FOUNDATION TRUST RESPONDENT
Transcript of Proceedings
It was for the Employment Tribunal to decide as a matter of law, whether the misconduct allegations against the Claimant were properly to be characterised as `professional misconduct' obliging the Trust to have an independent, medically qualified person on the disciplinary panel in accordance with the Department of Health's document, Maintaining High Professional Standards in the Modern NHS (MHPS) and the Trust's own internal policy. If the Tribunal erred in law in reaching its decision on that issue, the Employment Appeal Tribunal could interfere.
Considering the substance of each of the allegations against the Claimant, the Tribunal was as a matter of fact and law entitled and right to find that they had nothing to do with the exercise of the Claimant's ``clinical or professional conduct or competence''. The Tribunal did not err in law in reaching those conclusions.
Nor did the allegations raise issues of capability. It was no part of either sides' case that they did.
That being so, there was no breach of contract because the requirement to appoint an independent medical expert under MHPS was not engaged. Further, as no capability issue arose, there was no need to have an assessment of capability carried out by the National Clinical Assessment Service (NCAS).
THE HONOURABLE MRS JUSTICE SIMLER DBE
This is an appeal from a judgment promulgated on 14 September 2017 of the Bury St Edmunds Employment Tribunal (``the Judgment''), comprised of Employment Judge Sigsworth and members, Ms Daniels and Ms Lee. The Tribunal dismissed all claims brought by Ms S R Idu (referred to as the Claimant as she was below, for ease of reference) against her former employer, the Ipswich Hospitals NHS Trust, now known as the East Suffolk and North Essex NHS Foundation Trust At the invitation of the Respondent Trust and in exercise of powers under s. 35 of the Employment Tribunals Act 1996 and by reference to Rule 29 of the ET (Rules of Procedure) I have amended the name of the Respondent to this appeal by substituting the East Suffolk and North Essex NHS Foundation Trust (as it is now known) as Respondent. The Claimant raised no objection to this course of action. (``the Trust''). The Tribunal had to deal with wide-ranging claims of whistleblowing detriment based on 32 asserted protected disclosures, unlawful sex and race discrimination, in addition to claims of ordinary and automatic unfair and wrongful dismissal.
This appeal concerns only the claims for ordinary unfair and wrongful dismissal and raises a narrow point of law. It concerns the meaning of the term ``professional conduct'' and how it was applied by the Employment Tribunal in determining whether disciplinary allegations against the Claimant included allegations of ``professional misconduct'' (or lack of capability) as used in the Department of Health's document, Maintaining High Professional Standards in the Modern NHS (``MHPS''), which sets out a framework covering disciplinary procedures for doctors and dentists; and consistently with that, as used in the Trust's own internal disciplinary policy.
The Employment Tribunal held that the disciplinary allegations all concerned the Claimant's personal (rather than professional) conduct and accordingly, under MHPS it was not necessary for the Trust to have an independent doctor on the disciplinary panel constituted to determine whether or not the allegations were proved and if so what sanction should be applied.
The single ground of appeal advanced on the Claimant's behalf by Mr Aidan O'Neill QC (who did not appear below) is that the Tribunal was in error of law in failing properly to characterise the conduct in issue (or some of it) as raising professional conduct and/or professional capability concerns, and not just personal conduct concerns. For the Trust, Mr Simon Cheetham QC (who did appear below) contends that the Tribunal made no error of law and properly characterised the conduct in issue in this case.
The contractual framework
The Trust's internal Additional Disciplinary and Capability Policy for Medical and Dental Staff (version 2.0, 2013) (``the ADC Policy'') is required to be and is modelled on MHPS, which replaced earlier disciplinary procedures contained in circular HC(90)9.
HC(90)9 contained the following definitions:
``Personal conduct. Performance or behaviour of practitioners due to factors other than those associated with the exercise of medical or dental skills.
Professional conduct. Performance or behaviour of practitioners arising from the exercise of medical or dental skills.''
Page 3 of MHPS sets out the key changes from HC(90)9 including, relevantly:
``The distinction between personal and professional misconduct is abolished. Doctors and Dentists employed in the NHS will be disciplined for misconduct under the same locally based procedures as any other staff member; ...''
Notwithstanding that statement, the distinction appears to be maintained because, for example, Part III of MHPS headed ``Guidance on Conduct Hearings and Disciplinary Procedures'' provides:
``1. Misconduct matters for doctors and dentists, as for all other staff groups, are matters for local employers and must be resolved locally. All issues regarding the misconduct of doctors...should be dealt with under the employer's procedures covering other staff charged with similar matters. Employers are nevertheless strongly advised to seek advice from the NCAA (now NCAS) in conduct cases, particularly in cases of professional conduct.
Where the alleged misconduct relates to matters of a professional nature, or where an investigation identifies issues of professional conduct, the case investigator must obtain appropriate independent professional advice. Similarly, where a case involving issues of professional conduct proceeds to a hearing under the employer's conduct procedures the panel must include a member who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is not currently employed by the organisation.''
The terms `misconduct', `personal conduct' and `professional conduct' are not defined in MHPS.
Instead MHPS states that ``Misconduct can cover a very wide range of behaviour and can be classified in a number of ways''. At paragraph 4 under the heading ``Codes of conduct'' MHPs identifies four distinct categories into which misconduct will generally fall. These are in summary, (i) refusals to comply with reasonable requirements of the employer; (ii) infringements of disciplinary rules including contraventions of professional behaviour standards required by regulatory bodies; (iii) commission of criminal offences outside the place of work; and (iv) wilful, careless, inappropriate or unethical behaviour likely to compromise standards of care or patient safety or create serious dysfunction to the effective running of a service. Paragraph 5 recognises that examples of misconduct will vary greatly and provides that the internal codes of conduct should set out details of some of the acts that will result in a serious breach of contractual terms and will constitute gross misconduct, albeit recognising that a code cannot cover every eventuality.
Paragraph 7 provides:
``Failure to fulfil contractual obligations may also constitute misconduct. For example, regular non-attendance at clinics or ward rounds, or not taking part in clinical governance activities may come into this category. Additionally, instances of failing to give proper support to other members of staff including doctors or dentists in training may be considered in this category.''
MHPS makes clear that it is for the employer to decide on the most appropriate way forward but (at paragraph 9) ``if a practitioner considers that the case has been wrongly classified as misconduct, he or she... is entitled to use the employer's grievance procedure.''
Mr O'Neill QC submits that whilst not expressly delineating between professional and personal conduct, read in the context of the different procedural requirements set out at paragraph 2 of Part III MHPS (see above), the examples of categories of misconduct given in paragraph 4 (and 7) all concern professional misconduct save only category (iii). I reject this submission. It seems to me that the categorisation in paragraph 4 does not distinguish between personal and professional misconduct. The categories of misconduct identified can involve either personal or professional conduct (or perhaps both) depending upon the circumstances and facts of a particular case. Adopting an example suggested by Mr Cheetham QC in argument, refusal to comply with an employer's instruction not to smoke is likely to give rise to personal misconduct issues whereas refusing to perform a clinical procedure is likely to concern...
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