Dosanjh v Nottinghamshire Healthcare NHS Trust, Court of Appeal - United Kingdom Employment Appeal Tribunal, February 06, 2018,  UKEAT 0087_17_0602
|Resolution Date:||February 06, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Dosanjh v Nottinghamshire Healthcare NHS Trust|
Appeal No. UKEAT/0087/17/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 6 October 2017
Judgment handed down on 6 February 2018
THE HONOURABLE MRS JUSTICE SLADE DBE
DR S DOSANJH APPELLANT
NOTTINGHAMSHIRE HEALTHCARE NHS TRUST RESPONDENT
Transcript of Proceedings
PRACTICE AND PROCEDURE
The Employment Tribunal erred in refusing the Claimant's application for reconsideration of their Judgment dismissing her claims of wrongful and unfair dismissal when material referred to by her relating to the hearing by the professional body considering her fitness to practice was not taken into account. This material was relevant to the issue of whether the Claimant was guilty of falling below required professional standards for which she was dismissed. Further the Employment Tribunal erred in refusing the application in light of their omission to consider an important attachment to an email which was relevant to the adequacy of the Respondent's investigation and the fairness of the decision to dismiss. Application for reconsideration remitted to the Employment Tribunal for reconsideration.
THE HONOURABLE MRS JUSTICE SLADE DBE
Dr Dosanjh (``the Claimant'') appeals the refusal by Employment Judge Heap and members (``the ET'') in a Decision sent to the parties on 6 October 2016 (``the Reconsideration Judgment'') to reconsider their Judgment sent to the parties on 16 March 2016 dismissing her claims for wrongful and unfair dismissal (``the Liability Judgment'').
The Claimant's Notice of Appeal from the Reconsideration Judgment was rejected on the paper sift. Following the hearing of an application by the Claimant under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended), the appeal was set down for a Full Hearing in respect of paragraphs 15 and 19 of the Reconsideration Judgment only. All other grounds of appeal were dismissed.
The appeal was heard before me on 6 October 2017. In the grounds of appeal permitted to proceed to a Full Hearing the Claimant contended that the ET erred in refusing to reconsider their Liability Judgment by failing to take into account evidence she placed before them or referred to. It was said that this material undermined their refusal in paragraph 15 to reconsider their findings in paragraph 249 of the Liability Judgment. In that paragraph the ET held that the outcome of the referral of the Claimant's case to her professional body, the Health Professions Council (``HPC''), which exonerated her, was not relevant to the information before either the Respondent's disciplinary or appeal panel when deciding to dismiss her.
Shortly before the Full Hearing before the Employment Appeal Tribunal the Claimant submitted some notes of the hearing before the HPC. These were of evidence given by Karen Hampson, Linda Braithwaite, Dr David Connelly and Andrea Ward of the Respondent. The purpose of submitting these notes was to demonstrate that the investigation by the Respondent into allegations against the Claimant was deficient and that it formed no proper basis for concluding that she was guilty of gross misconduct. The Claimant drew attention to passages in the notes of cross-examination of the Respondent's witnesses at the hearing before the HPC. The evidence she referred to included that given by Ms Braithwaite to the HPC that she did not carry out an audit of the Claimant's files on patients.
Further the Claimant contended that the ET erred in refusing to reconsider their Liability Judgment by failing to take into account properly or at all the attachment to an email of 13 August 2009 sent by the Claimant to Karen Hampson of the Respondent who was the Claimant's team leader. It was contended that if the ET had read or properly considered the attachment to the email they should have reconsidered the conclusion reached in paragraph 166 of the Liability Judgment. The Claimant contended that the attachment to the email showed that she had informed her team leader that she was behind with her work. This undermined the finding of the ET in the Liability Judgment.
The Claimant also contended that paragraphs 15 and 19 of the Reconsideration Judgment did not give any or any sufficient reasons for rejecting her application.
In deciding whether the ET erred in failing to take into account material which was placed before them or arguments made to them, I deemed it necessary to know what material the Claimant submitted to the ET when making her application for reconsideration. Accordingly, following submissions by the parties on the appeal, consideration was adjourned for them to agree, as far as possible, a list of the documents which the Claimant submitted to the ET as the basis for her application for reconsideration of the Liability Judgment. If agreement was not possible the parties were to prepare position statements. On 27 October 2017 the Claimant submitted a position statement which shows that there is a broad measure of agreement as to the documents sent by the Claimant to the ET in support of her application for reconsideration.
Outline Facts Relevant to Paragraphs 15 and 19 of the Reconsideration Judgment
The Claimant was employed by the Respondent as a Clinical Psychologist in the Mental Health Services for Older People (``MHSOP'') Directorate from 2008. During September 2009 Karen Hampson, her supervisor, started a performance review of the Claimant as there was some concern that files on her patients were not being kept up to date. The Claimant was signed off as competent. Following a serious incident outside work on 17 November 2009 the Claimant started a period of sick leave. During that time it came to the attention of Dr David Connelly, her clinical supervisor, that a number of problems had arisen in relation to the Claimant's files. The matter was passed to Andrea Ward, General Manager of MHSOP, to consider whether an investigation should be undertaken. At a meeting with Andrea Ward on 27 January 2010 the Claimant was told of six concerns about the record keeping of her files. The Claimant was told that she was not to remain in active clinical practice but was assigned to a research project.
During the meeting on 27 January 2010 the Claimant said that she had a number of files at home. The ET held at paragraph 113 that there is some confusion as to what precisely was said about the files, whether they only required a final report and/or were closed or whether they were ongoing patient files.
Following the meeting on 27 January 2010 Linda Braithwaite, Performance Manager, was appointed to investigate the six allegations against the Claimant.
It came to the attention of Andrea Ward that the patient files the Claimant had at home were still live and their subjects potentially required further treatment or intervention. Accordingly Andrea Ward wrote to the Claimant on 11 February 2010 to inform her that the issue regarding retention of files at home was also to be included as part of Linda Braithwaite's investigation.
The ET referred to a meeting on 11 February 2010 between the Claimant and Linda Braithwaite. The ET held at paragraph 162 that the Claimant gave information that she had fallen behind with her reports.
The ET held that some eight files from the Claimant's caseload were identified as having missing reports and that some of these were from before the Claimant's sickness absence. In relation to falling behind with reports the Claimant stated at the meeting that she had raised those matters with Karen Hampson and with Dr Connelly. Both were questioned about this by Linda Braithwaite. The ET recorded that neither supported the Claimant's recollection and denied that they were aware of the position.
There was a further meeting between the Claimant and Linda Braithwaite on 25 February 2010. The ET recorded at paragraph 164 that at the interview the Claimant accepted that there was no evidence to support her contentions that her supervisors were aware that she had told them that she was behind with her reports.
The ET held that after that meeting the Claimant forwarded to Linda Braithwaite an email which she contended supported her position that she had informed Karen Hampson that files were ongoing. The email was dated 13 August 2009 and had been sent by the Claimant to Karen Hampson. The ET set out the email but not the reference in it to an attachment nor the important list which was attached which was sent to Karen Hampson and forwarded to Linda Braithwaite. The covering email quoted by the ET read:
This is a bit rushed but I feel that I have everyone on the list (actually I have a sneaky feeling that I am missing one or two). IH [anonymised by the Tribunal in this Judgment for reasons of privacy of the patient] B50 and MB [anonymised by the Tribunal in this Judgment for reasons of privacy of the patient] B50 and maybe another one.
Kind regards S''
The ET held at...
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