Can an employer increase the sanction for misconduct on appeal?

11 June 2013 by

pdp0564782_97This was the question confronting Judge Hegarty QC in, McMillan v Airedale NHS Foundation Trust [2013] EWHC 1504 QB – read judgment

The answer of the Court was that clear and express words in the contract would be required in order to confer a power to increase a sanction on an Appeal Panel.

The Claimant was a Consultant Obstetrician and Gynaecologist who was involved in a serious untoward incident when a patient suffered significant and uncontrolled bleeding in the aftermath of a successful caesarean delivery which necessitated emergency surgery to remove her spleen. In the aftermath, the Trust’s Medical Director formed the view that the Claimant had not been honest about the care of the patient and had, in fact, given conflicting accounts. This was also the conclusion of a disciplinary hearing which then issued a final written warning and referred the case to the GMC. The Claimant appealed.

The Trust gave the impression that this would be a re-hearing and that if successful the Claimant would have no findings against her but if the appeal failed, the penalty would be at large. It duly came to pass that the Appeal Panel, presided over by a fee-paid Employment Judge (who was a non-executive Director of the Trust) found the Claimant to be guilty of the alleged misconduct and proceeded to set up a hearing to determine the appropriate penalty. At this point, amidst a welter of protest and recriminations, the Claimant withdrew her appeal and began injunction proceedings against the Trust.

The Court found that there was no contractual power to allow the employer to increase the penalty on appeal and nothing to prevent the Claimant from withdrawing it even if that was just before the penalty was re-considered. Additionally an exchange of correspondence about the Trust’s proposals for the appeal did not amend the contract to allow a more severe penalty (i.e. the provisions were asymmetrical).


However, while that might be the end of the interest in the case for the purposes of the casual reader, the fact that this Judgment is being reported at all is because it represents the latest skirmish in what I have called in a previous post “the wars of the HC (90) 9 succession”  i.e. what procedural safeguards are available to doctors in the NHS under their collective agreement, Maintaining High Standards in the Modern NHS [MHPS] (which replaced HC (90) 9)..

The case law on this document is now so labyrinthine that it would be unsurprising if some enterprising publisher decided to produce, MHPS Law Reports and it may also explain why I entitle my usual talk on the subject, “How to speak colloquial MHPS.”

The difficulty with MHPS is that it was arrived at as a result of negotiation. The circumstances were explored by the Court of Appeal in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789.. There are various inconsistencies in the Parts of the Policy as they provide for exclusion, conduct and capability proceedings. In Kulkarni the Court of Appeal read across a right to representation from the capability procedures to the conduct section. In this case, the Judge found that there was no justification for reading over the appeal provisions that dealt with capability to assist interpretation of those that concerned misconduct and, in any event, in the opinion of the Judge, the underlying concern in capability cases is protection of the public from incompetence whereas misconduct did not give rise to such concerns.


Although this will be deployed immediately by troops in the front line struggle between doctors and management in the NHS, it remains to be seen how influential it will turn out to be. One curiosity is the use by the Judge of the ACAS Guide,” [i.e. not even the statutory code], “Discipline and Grievances at Work” as an aide to interpretation of a contract.

I am afraid there was also a temptation to entitle this piece, “we read it so you don’t have to.” This alludes not to the significance of the Judgment but as to its length. To determine this case concerning whether or not to grant injunctive relief concerning an employment contract, the Judge used nearly 60,000 words. That is certainly the size of a novella. This is not a gratuitous piece of criticism for the reality is that this case will be cited as an example where a Court has been prepared to grapple with the detail of the case at hand despite the oft cited remarks of Smith LJ in Kulkarni that the High Court, “was not the proper vehicle for management of internal disciplinary proceedings.” The Department for Health might use the Judgment and the eight days of hearing that led to it as another piece of ammunition as to why MHPS needs to be reviewed.

However, those representing doctors will principally take heart from the fact that the Court entertained this application at all despite the fact that it was only made after the appeal against the findings had failed and just before the Appeal Panel was about to meet again to re-consider sanction. On that basis it represents a riposte to Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) and other cases where applications foundered on the rock of timeliness.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

1 comment;

  1. OB/GYN says:

    Dear Mr Downs,

    I am surprised that you believe that consultants have any employment rights at all – in the light of the Supreme Court decision in Edwards v Chesterfield NHS Trust. It appears that Lady Hale has become our leading employment judge – as she was the only one to give a plausible opinion out of the four offered !

    What chance does Dr McMillan have for her – probably highly effective management of a difficult situation – when the Medical Director of her Trust is named Catto ?

    Another consultant in obstetrics and gynaecology !

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: