Dismissing a doctor does not engage Article 6 of the Convention

May 18th, 2012 by Clive Sheldon QC

The Court of Appeal has today announced judgment in Mattu v. The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641, a dispute between a consultant in non-invasive cardiology and general medicine and his employer NHS Trust. Dismissing Dr. Mattu’s appeal, the Court held that the procedure by which Dr. Mattu was dismissed did not attract the protection of Article 6 of the European Convention of Human Rights (“the Convention”). The Court answered the question “does a decision by an employer whether to dismiss an employee under a contract of employment determine a civil right of the employer of the employee within the meaning of Article 6” with a resounding “no”. That is the most significant aspect of the Court’s decision, applying as it does to all employers, private and public, when exercising contractual powers. The case is also of specific interest to those advising doctors or Trust’s on employment rights and processes; and of general interest to those who like to read about employees accused of being “patronising, condescending and disrespectful” to their bosses. It also provides a cautionary tale for employees who have managed to secure six adjournments of a disciplinary hearing, but fail to secure the seventh!!

The facts of the case can be set out briefly. Dr. Raj Mattu worked for the Trust as a consultant since 1998. He was contracted to provide clinical services, and was also required to carry out research. He had been suspended by the Trust in 2002 for disciplinary reasons, but his hearing did not take place until five years later, in 2007! The disciplinary hearing did not result in his dismissal. However, as Dr. Mattu had not been working for some considerable time, it was recognised that he needed re-skilling to enable him to return to safe practice. Re-skilling was arranged, but there was disagreement as to its scope. Dr. Mattu refused to sign the Trust’s action plan, as it did not make provision for academic re-skilling. This led to disciplinary action being taken against Dr. Mattu.

The case against Dr. Mattu was not that he was not entitled to query aspects of the re-skilling programme – Dr. Mattu wanted six months academic re-skilling connected to research, with the possibility that this be spent in the United States – but ‘the way in which Dr Mattu goes about doing this . . . renders him unmanageable’. Instead of meeting or writing to the appropriate person raising matters politely, Dr. Mattu ‘will write lengthy letters of complaint, lodge grievances or deal with matters through incorrect channels.’ It was said that ‘The tone of Dr Mattu’s letters are often patronising, condescending and disrespectful to those assisting with the reintegration process’, including the Chief Executive and Chairman of the Trust.

Three particular disciplinary allegations were made against him for consideration by a disciplinary hearing:

(1) refusal to comply with the reasonable requirements of his employer in signing up to the Action Plan and failing to co-operate with the re-skilling process; refusing to accept or comply with reasonable instructions; acting in such a way as to render himself unmanageable.

(2) leaking confidential information about the Trust and its employees; making false allegations to the media and third parties.

(3) whilst on sick leave, claiming to have a severe illness, and therefore unable to attend investigation meetings of an occupational health review, he attended social events. This amounts to misrepresentation and a breach of trust and confidence.

The disciplinary hearing was adjourned on six occasions! A further postponement was sought on account of Dr. Mattu’s health. This request was rejected. The hearing was held in Dr. Mattu’s absence. The panel considering the matter included the Trust’s Chief Executive, but did not consist of an independent medically qualified person, which would have been required under the contractual arrangements if professional misconduct was being alleged against a doctor. The Trust’s disciplinary procedures were modelled on the Department of Health’s document Maintaining High Professional Standards in the Modern NHS (“MHPS”). The panel found that Dr. Mattu was guilty of gross misconduct and that he should be dismissed without notice. An appeal was heard by a panel which consisted of senior doctors and health service personnel, none of whom was employed by or had any involvement with the Trust. His dismissal was upheld.

Dr. Mattu issued proceedings in the High Court. He complained that the Trust’s Chief Executive was not entitled to dismiss him, either under the contract or in light of Article 6 of the Convention. His claim was dismissed: see [2011] EWHC 2068 (QB).

On appeal to the Court of Appeal, Dr. Mattu contended that allegation (1) (refusal to comply with reasonable requirements) amounted to an allegation of “professional misconduct”. If so, then the decision to dismiss him was unlawful as it had been made by a panel which had not been properly constituted. A majority of the Court of Appeal (Stanley Burnton, Elias LJJ) dismissed this argument. Not every allegation against a doctor would be regarded as one of professional misconduct. For Stanley Burnton LJ, under the MHPS the distinction between professional and non-professional misconduct was the disciplinary panel needed to consist of an independent medically qualified member. Professional misconduct must, by definition, require the attendance of such a member and so must require medical expertise. Allegation (1) which was related to the requirement that Dr. Mattu return to work without academic re-skilling ‘did not involve any medical skill or expertise for its resolution: it was an employment, a managerial issue.’

Each of the judges in the Court of Appeal held that the decision not to permit Dr. Mattu a seventh adjournment of the disciplinary hearing did not render the dismissal unfair. The obligation of fairness did not, according to Stanley Burnton LJ, require the Chief Executive to adjourn proceedings for the seventh time, into an uncertain future, and in circumstances where it was appropriate for the matter to be determined expeditiously.

As for Article 6 of the Convention, each of the judges were in agreement as to the outcome, but arrived there by different routes.

The potential ramifications of the Article 6 argument made by Dr. Mattu were spelt out by Stanley Burnton LJ at [48]: ‘If Article 6 is engaged by a public employer’s contractual disciplinary procedures . . . any decision to dismiss an employee must be taken by a tribunal compliant with Article 6, with procedures, which are likely to include the right to legal representation, that are implicit in Article 6.’ In addition, as Member States have a positive obligation to secure the enjoyment of Convention rights under the domestic law, ‘the UK Government may be obliged to enact legislation requiring private employers to comply with Article 6 when considering whether to dismiss their employees.’ Unsurprisingly, Stanley Burnton LJ’s analysis led in a different direction: Article 6 was not engaged at all.

Whilst recognising that ‘The right to carry on one’s profession is undoubtedly a civil right’ (following Le Compte, Van Leuven and De Meyeure v. Belgium (1982) 4 EHRR 1), Stanley Burnton LJ held that the decision of the Trust to dismiss Dr. Mattu ‘did not affect his right to practice his profession. He could lawfully do so either in private practice or as an employee of another NHS Trust or of private hospital. His civil right, lawfully to practice his profession, was not engaged.’ It was contended that Dr. Mattu’s right to work as doctor was ‘in practice’ affected because the practical consequence of dismissal by one NHS employer was that he could not find employment with another. On the facts, however, it was noted that Dr. Mattu could still practice privately as a consultant and there was no evidence that he had been refused employment by an NHS Trust. In any event, however, the applicability of Article 6 ‘cannot depend on whether in fact a doctor or other professional can obtain work in his field as a result of his dismissal by an employer.’ Stanley Burnton LJ disapproved the obiter remarks to the contrary of Smith LJ in Kulkarni v. Milton Keynes Hospital NHS Foundation Trust [2010] ICR 101. Smith LJ had noted – in a case concerning professional misconduct by a doctor – that she would have found Article 6 engaged ‘where the NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred form employment in the NHS.’

Looking at the Supreme Court’s judgment in R (G) v. Governors of X School [2011] ICR 1033 (concerned with disciplinary proceedings involving a teaching assistant: accused of inappropriate relationship with a child), Stanley Burnton LJ was noted that the disciplinary proceedings did not themselves determine a civil right, because they only determined a contractual right. The Supreme Court had held that a ‘civil right’ might be determined by disciplinary proceedings if they had a ‘substantial influence or effect on the determination of the civil right or obligation’ in later proceedings. In that case, it was held that the disciplinary proceedings did not have that effect, because the Independent Safeguarding Authority – which could determine the right to practice in the teaching profession, and therefore determine civil rights – made its own findings of fact and were not bound by the earlier proceedings of the employer. Similarly in Dr. Mattu’s case. Stanley Burnton LJ held that the Trust’s disciplinary proceedings did not influence the outcome of the General Medical Council’s proceedings; an employment tribunal hearing an unfair dismissal claim would still consider the issue of fairness; and a Court hearing a wrongful dismissal case could still determine whether or not the misconduct had occurred.

Ultimately, therefore, Stanley Burnton LJ held that Dr. Mattu’s dismissal ‘was the exercise, or purported exercise of a contractual right, not the determination of a civil right within the meaning of Article 6.’

Elias LJ reached the same conclusion on the question of categorisation of allegation (1), holding that even if there was an issue ‘as to whether academic re-skilling was a necessary requirement to the proper performance of clinical duties,’ which was not the case here, the question would then be whether the Trust was giving a reasonable and lawful instruction to say that Dr. Mattu should first undertake clinical duties and that academic re-skilling could come later. That question did not involve an issue of professional conduct requiring the expertise of a qualified doctor on the panel.

With respect to Article 6, Elias LJ rejected the fundamental premise of the argument mounted by Dr. Mattu that the decision of the Trust rendered him unemployable, thereby preventing him from practising his profession. In any event, according to Elias LJ there was no ‘determination’ by the employer of the right to practice a profession. Properly characterised, the decision of the employer was an assertion of its own contractual right, rather than determining Dr. Mattu’s right. The obiter remarks of Smith LJ in Kulkarni were disapproved.

Elias LJ also rejected the contention that the Trust was determining an Article 8 claim (right to respect to private life) by somehow determining Dr. Mattu’s right to reputation (which may fall within Article 8: Pfeifer v. Austria (2009) 48 EHRR 8). Rather, the employer was exercising its own contractual powers, even if this may have damaged Dr. Mattu’s reputation as a consequence.

Elias LJ was also inclined to the view that the overall set of procedures and remedies available to Dr. Mattu would have satisfied Article 6 of the Convention in any event, with the effect that the first stage disciplinary hearing did not need to be Article 6 complaint in any event: see e.g. Alconbury [2003] 2 AC 295. Elias LJ was prepared to accept that various stages were not Article 6 compliant — the original decision to dismiss, the Appeal Panel, and even a hearing of an unfair dismissal claim before an employment tribunal. Elias LJ noted that tribunals cannot review the finding of primary facts for itself (see BHS v. Burchell [1980] ICR 303). However, for Elias LJ. the right to challenge the decision for breach of contract in a wrongful dismissal claim would be likely to constitute ‘full jurisdiction’, thereby providing the Article 6 complaint forum for Dr. Mattu, although he did not reach a definitive view on this matter.

Sir Stephen Sedley disagreed with the majority of the Court of Appeal with respect to the categorisation of allegation (1), and would have allowed the appeal. For him, there was no necessary correspondence between ‘professional’ and ‘clinical’ misconduct, and the disciplinary panel should have included a medically qualified person. With respect to Article 6, the answer was straightforward. The procedure by which Dr. Mattu was dismissed did not attract the protection of Article 6 of the Convention, for the simple reason that an employer dismissing an employee is not determining the employee’s civil rights, but is exercising a contractual power. The outcome of the decision may lead to civil rights coming into play: common law right not to be unlawfully dismissed and the statutory right not to be unfairly dismissed. There are Article 6 compliant bodies to deal with this.

All in all, the decision of the Court of Appeal in Mattu makes for interesting reading. I won’t be surprised if the matter is taken further: if not the Supreme Court, then Strasbourg. Until then, however, employers should feel relieved that they are not required to constitute Article 6 compliant panels before making dismissal decisions.

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