Don’t rely on human rights in a dismissal claim

23 May 2012 by Martin Downs

Mattu v University Hospitals of Coventry and Warwickshire NHS Trust – read judgment 

For a government much divided about rights of employees and the Beecroft Report that proposes curtailing them, some relief is provided by this Court of Appeal ruling, a further blow to those who have argued that Article 6 can be deployed against their employers.

The judgment represents the latest round in the saga of Dr Mattu’s dispute with his former employers which commenced with his suspension in 2002 and included an unsuccessful attempt to force the Trust to prevent disciplinary proceedings and then a challenge to his dismissal.The Court unanimously concluded that the procedure by which Dr Mattu was dismissed did not attract the protection of Article 6 as an employer who dismisses with or without the benefit of a formal hearing is not determining the employee’s civil rights. Rather the employer is exercising a contractual power. The disciplinary proceedings of an employer and a decision to dismiss summarily may give rise to civil rights, namely proceedings for unlawful dismissal and unfair dismissal and those concerned with professional and regulatory standards but they do not determine such rights. In those circumstances Article 6 will be engaged before the Courts, Tribunals and Regulatory Panels but not in disciplinary proceedings before an employer. 

Background Facts

Dr Raj Kumar Mattu was a consultant in non-invasive cardiology and general medicine employed by the Defendants. He also had an Honorary Research post at Warwick University.

Disciplinary proceedings against Dr Mattu had continued for six years until in April 2008 when he received a six month first warning. Through most of this period he had been suspended. Unsurprisingly, the Trust was then was confronted with the problem that he required re-skilling. However, the two sides failed to reach agreement about an action plan, in part because Dr Mattu believed he also required six month academic re-skilling in addition to his clinical re-skilling and that this should be completed in the US.

This culminated in 3 charges being made against Dr Mattu that: he was failing to comply with reasonable instruction concerning re-skilling; that he had made disclosures to the press which were false; and he misrepresented the extent of his illness at a time when he was off sick for ill-health.

A hearing was conducted by the Chief Executive of the Trust which concluded that he was guilty of gross misconduct and he was summarily dismissed. His appeal, before a panel of three persons (none of them employed by the Trust) dismissed his allegations.

The Claim

Dr Mattu sought to argue that Article 6 applied to his circumstances and he was entitled to an independent and impartial tribunal which (the Court of Appeal agreed) the Chief Executive of the Trust was not (even the appeal had the problem that they were largely conducting a review exercise).

Dr Mattu did not rely on the argument that the findings of the Trust would have a substantial influence on any GMC proceedings as to whether he could continue to practise as a doctor as per R (on the application of G) v The Governors of X School [2011] UKSC 30. Rather he sought to argue that a decision to dismiss him would effectively determine his right to work in his chosen profession and no subsequent scrutiny by a court or Tribunal could remedy this as they could not revisit the facts. Alternatively he argued that the right to enjoy a good reputation was a civil right and this was impugned by the Trust.

The Decision

While all the judges agreed that Article 6 did not apply for the reasons mentioned above, Sir Stephen Sedley preferred not to assent to more detailed reasoning.

However, Stanley Burnton LJ went on to doubt (with Elias assenting) the obiter remarks by Smith LJ in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789 that,” Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS (at Para 67)” on the basis that they were an invitation to uncertainty and costs. .

Burnton LJ does not explicitly engage with the reputation argument but states he agrees the judgment of Elias LJ who does. The latter concludes that the Trust in this case was not determining any right to reputation but was exercising its contractual powers. Dr Mattu’s reputation may have been damaged as a result of the decision but it was not determined by it.

He also agreed with Blair J in Puri  (see our post )that in domestic law there is no general right to reputation of the kind replied up by Dr Mattu and Article 6 cannot create such a right.

They also concurred that any court would not readily imply a term into a contract which would limit the power of the court to determine whether or not there has been a breach of contract.

Those concerned only with fundamental rights and freedoms need read no further. Readers at the coalface of the NHS or in employment law will note that the appeal also determined the “categorization issue.”This is the problem arises where a disciplinary procedure provides for different procedural safeguards depending on the category of presenting problem. In this case, the Trust decided that the allegations did not concern professional misconduct and so they were not required to seek independent professional advice during the investigation and the Chief Executive did not have the benefit of a medically qualified member independent of the Trust when he deliberated as to whether to dismiss Dr Mattu. By the time of the appeal only the classification of the allegation concerning his refusal to comply with reasonable instructions concerning the re-skilling process was in issue. A majority of the Court of Appeal decided that this was not a matter of professional misconduct.

The Court’s Reasoning

“Categorisation” problems arise frequently and judgments on the subject are scrutinised closely by practitioners.

In analysing the judgment it is worth noting again that Stanley Burnton LJ stated that he entirely agreed with the judgment of Elias LJ. Taking that as a starting point, it would appear that it was part of the ratio of the judgment that the Court of Appeal disagreed with the analysis of Andrew Smith J when he dealt with a categorization problem in Hussein v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670.

In that case the Court had decided that a contract could (and in that case did) give the discretion to the Trust to decide the category of allegation themselves – which discretion they had to exercise reasonably. Elias LJ noted that the argument that, “it is for the authority to decide under which category a case falls” failed in Skidmore and the Judgments of all three Judges proceeded on the basis that it was a matter for the Court to decide.

In this case both Stanley Burnton and Elias LLJ were fortified in their opinion that the allegations against Dr Mattu did not concern professional misconduct by the concurring conclusions of the Appeal Panel (who were independent of the Trust).

Elias LJ and Sir Stephen Sedley agreed that professional misconduct should not always be equated with clinical misconduct but Sir Stephen was alone in finding that that which the Trust was concerned required the input of a Doctor as his refusal to co-operate with the re-skilling plan was conduct and it was professional because it concerned an aspect of his job, namely research

Comment

Although this was one more skirmish in The Wars of the HC [90] 9 Succession between Doctors and NHS trusts about what procedural safeguards they are entitled to if investigated, suspended or dismissed for misconduct since the introduction of “Maintaining High Professional Standards in the Modern NHS” (MPHS) in 2005 http://this looks like the end of the road for arguments that Article 6 is engaged in dismissal procedures.

Whilst it might still be possible to argue that the R (on the application of G) v The Governors of X School [2011] UKSC 30 test applied in a case, it is difficult to think what that might be given the fact that the set of facts in  Re G was so strong and yet it was still found that the connection was not strong enough because of the finding that the ISA would arrive at its own independent judgement.

Ingenuity of a high order would be required.

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