Can an employer increase the sanction for misconduct on appeal?
11 June 2013
This was the question confronting Judge Hegarty QC in, McMillan v Airedale NHS Foundation Trust  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  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  EWHC 4015 (QB) and other cases where applications foundered on the rock of timeliness.
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