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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gerstenkorn v Belfast Health & Social Servic... [2008] NIIT 154_07IT (13 October 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/154_07IT.html Cite as: [2008] NIIT 154_07IT, [2008] NIIT 154_7IT |
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CASE REF: 154/07
CLAIMANT: Clemens Gerstenkorn FRCS
RESPONDENT: Belfast Health & Social Services Trust
The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £58,835.00. The tribunal refused the claimant's application for an Order for Reinstatement and/or Re-engagement.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr J Lyttle
Mr P McKenna
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by Directorate of Legal Services, Central Services Agency.
Reasons
Mr Ray Hannon, Consultant Vascular Surgeon with the Trust and a member of the interview panel at the time of the claimant's appointment to the said post;
Dr Kenneth Fullerton, the then Medical Director of the Trust;
Mr René Chang, Consultant Transplant Surgeon, Director of Transplantations, St George's Hospital, London/St George's Healthcare NHS Trust;
Mrs Eleanor Hayes, then Director of Nursing of the Trust and a member of the appeal panel, following the claimant's dismissal from the said post;
Mr Mervyn Barkley, Director of Personnel of the Trust;
Mr Alistair Brown, Director of Operational Support of the Trust, and a member of the disciplinary authority, which decided to dismiss the claimant; and
the claimant himself.
"This is a new post created to meet the needs of the Regional Renal Services including provision of vascular access for haemodialysis patients, placement of peritoneal dialysis catheters and renal transplantation. The post will be based at Belfast City Hospital with designated sessions at satellite renal units and occasional commitments to the Royal Belfast Hospital for Sick Children.
Appreciating the likelihood of other speciality interests the post can be modified to allow three fixed sessions in another surgical speciality.
Essential criteria –
- Full registration with the GMC
- FRCS or equivalent
- On the Specialist Register of the GMC for Surgery or be within three months of being issued with a CCST in Surgery by the Specialised Training Authority
- Broad general experience in renal failure and transplant surgery [Tribunal's emphasis]
In addition, the Trust prepared an employee specification which under 'Attainments/Education' repeated, in terms, the first three bullet points of the essential criteria, as set out in the advertisement, as essential criteria. The fourth said bullet point contained in the advertisement was stated to be an essential criteria under 'Experience and Job Training'. In addition, under 'Experience and Job Training', the employee specification set out a desirable criteria of – "experience in undergraduate and postgraduate teaching of surgery - publications commensurate with experience".
Other than the said references to 'broad general experience in renal failure and transplant surgery and/or experience in undergraduate and postgraduate teaching of surgery', and/or 'on the specialist register of the GMC for Surgery or be within three months of being issued with a CCST in Surgery by the Specialised Training Authority', neither the employee specification nor the advertisement set out, as an essential criteria and/or desirable criteria for the post, that any applicant for the post was required to have completed and/or carried out a relevant training course in transplant surgery and/or for any specified period.
At the time of the appointment of the claimant to the post in 2003, the Trust had provided transplant surgery using the services of one Consultant, Mr J Connolly, and were anxious to obtain the services of a further Transplant Surgeon to reduce the vulnerability of the service due to the dependence on one Surgeon but also to take the opportunity to expand local services in Northern Ireland and hopefully to enable it in the future, to develop an appropriate structure so that the Trust would obtain accreditation from the relevant bodies to enable training of Transplant Surgeons to be carried out in Northern Ireland.
Professor Hakim; and
Mr Papalois;
and enclosed, in particular, a detailed curriculum vitae to which further reference shall be made elsewhere in this decision.
The application form was a standard application form. In many of the sections he stated "see CV". In relation to the section headed 'Previous Employment' he also stated, in particular, "see CV". This section required information on:-
(i) Name of hospital, other centre or private practice.
(ii) Post held and status.
(iii) Period of employ, from …… to.
(iv) Brief outline of duties and reason for leaving.
Whilst it is correct that the claimant, in his CV, under Appointments (see further Paragraph 2.5 of this decision) referred to many of the details sought above in the application form, he did not in his CV give, details of his reason for leaving the posts referred to and, in particular, details for the reason he left Thames Deanery, St George's and King's College Hospital, London.
A short listing panel on 25 March 2003 short listed the claimant for interview; the short listing documentation confirmed that the claimant, who appears to have been the only candidate for the post, was considered, on the basis of his application form/CV, to have satisfied the short listing criteria, namely:-
(i) Full registration with the General Medical Council.
(ii) FRCS or appropriate equivalent qualification.
(iii) On the Specialist Register of the GMC for Surgery or be within three months of being issued with a CCST by the Specialist Training Authority.
(iv) Broad general experience in renal failure/transplant surgery.
Indeed, there was no dispute, at the hearing, that at the time of his application, the claimant had full registration with the General Medical Council and had obtained his FRCS and was on the Specialist Register of the General Medical Council with a CCST in General Surgery since December 1999. On the basis of the said application/CV, the short listing panel were therefore satisfied that, for the purposes of short listing for interview, the claimant had set out sufficient to show, inter alia, that he had broad general experience in renal failure and transplant surgery, one of the essential criteria for the post.
The interview panel consisted of:-
(i) Professor A Bradley (Assessor)
(ii) Mr J Connolly (Consultant from the Speciality)
(iii) Professor P Maxwell (QUB representative)
(iv) Mr R Hannon (nominee of Medical Directorate)
(v) Mr J Q Coey (Chief Executive of the Trust)
(vi) Mrs J Ruddock (Chairman of the Panel)
The claimant did not believe that Mr Connolly had been a member of the interview panel. Before the conclusion of the hearing, the respondent produced Mr Connolly's rating form; and, in the circumstances, the tribunal is satisfied Mr Connolly was present and part of the interview panel, which interviewed the claimant.
It was also clear, from the documentation, relating to the interview which was produced to the tribunal, that, prior to the interview, the panel had considered the areas to be dealt with by each member of the panel and the time to be allotted. In particular, the tribunal noted that Professor Bradley, who was the external assessor and, in essence, recognised to be the expert in the field of renal/transplant surgery on the interview panel, was to deal with 'candidates' training and experience' (15 minutes). Mr Connolly was to deal with 'Future development in speciality' (10 minutes). Mr Hannon was to deal with 'clinical governance' (5 minutes). Indeed, Mr Hannon confirmed in evidence that, as far as he could recall, his questions had focused on clinical governance. Professor Maxwell was to deal with 'academic and teaching experience research' (5 minutes). Mr Coey's questions were to do 'with management issues' and Mrs Ruddock was to deal with a 'topical issue' (5 minutes each).
"Appointments
| Junior Consultant in Transplantations |
Since 11-2002 Depart. for Transplantation University Bayreuth and Augsborg, Germany |
| Post CCST Specialist Registrar in Transplant and General Surgery | Department of General Surgery 4-02 – 10-02 University of Tuebingen, Germany (Liver, Pancreas and Kidney Transplantation) |
| Clinical Fellow in Transplant Surgery Specialist Registrar in General Surgery (FTTA) |
St Mary's Hospital, London; 04-01 – 3-02 St Thomas & Guy's Hospital, London Thames Deanery, St George's and King's College Hospital, London; 3-00 – 12-01 |
| Fellow in Transplant Surgery MD Candidate SHO in Transplant Surgery | Freeman Hospital and Department of Surgery, University of Newcastle UT; 8.98 – 2.00 Freeman Hospital; Newcastle; 3.98 – 7.98 |
| Locum SHO in General Surg, Transplant, Cardiothoracic S. | Weston & Royal Infirmary, Hairmyres Hospital, Glasgow; 11.97 – 2.98 |
… ."
Following the interview of the claimant, the interview panel recommended that the claimant be appointed to the said post, and he commenced employment with the Trust in the said position from 1 August 2003.
However, insofar as relevant and material, Mr Hannon noted on his rating form under the criteria 'Attainments during experience in previous posts:- 'live donor paediatrics' In the comments section, under the said criteria he had written '40 assisted, 10 solo, light on paed, light on live donors'. Under 'Technical Skills', he noted:- 'broad range'. His overall assessment of the claimant was 'B'.
In particular, the tribunal noted that Professor Bradley, who was the external assessor and expert in this field of transplant surgery stated in his rating form, for example:-
"Professional expertise –
"limited experience in paediatric and living donor kidney transplantation C'
Technical Skills
' - has training in relevant sub-speciality, ie transplants C'
and under Overall Assessment –
'competent to undertake duties of post but will need support from surgical colleague for living donor and paediatric transplantation C'."
He, unlike Mr Hannon, made no note under 'Attainments during experience in previous posts'; nor did he make any reference to any specific figures for the numbers of transplants, whether assisted or solo, or otherwise, carried out by the claimant. However, in the judgment of the Tribunal, on the basis of what was stated on the form he clearly had formed the view that the claimant had limited experience in paediatric and living donor kidney transplantation and would need support from a surgical colleague in connection with such work.
The Tribunal noted that other members of the interview panel on their respective rating forms, as set out below, referred to the claimant's limited experience.
Mr J Connolly, who was the Consultant in the Trust in transplant surgery, and with whom the claimant was to work upon his appointment, noted under 'Attainments during experience in previous posts' – limited independent experience. May need supervising in some aspects' He rated this criteria as C+. Again, there was no reference by Mr Connolly to the numbers quoted by Mr Hannon and/or to specific number of transplants by the claimant, whether assisted or solo or otherwise. Under 'Professional Expertise', which he assessed as C+, he noted 'Admitted limited experience. Good possibility for development'. He gave him an overall assessment of B.
Professor Maxwell, for example, noted under 'Attainments during experience in previous posts', which he rated as B – 'approximate three years of transplant experience. Limited involvement in living donor procedures as lead surgeon'. He also made no reference to the specific numbers of transplant surgery carried out by the claimant, as referred to my Mr Hannon; though clearly suggested that he had formed the view that the claimant had limited experience in living donor procedures as a lead surgeon. Under 'Technical skills' he noted 'described adequate competence in vascular access surgery and renal transplantation'; which he assessed as C. He gave him an overall assessment of B.
Mr Coey gave the claimant an overall assessment of B-; and Mrs Ruddock gave an overall assessment of A-.
Mr Hannon gave evidence to the tribunal and was, as indicated above, the only member of the interview panel to do so. He was, at the time of the interview, the Clinical Director of the Trust. He had in that capacity knowledge of transplant surgery; but was not an expert or trained in such surgery. Indeed, he would not normally have sat on this interview panel but had agreed to do so, in the absence on leave of the then Medical Director, Dr Fullerton, who would normally have expected to have sat on the interview panel.
In the course of his evidence, Mr Hannon acknowledged the references on his rating form, as set out above, were in his handwriting. However, he was unable to state whether he had noted the reference under 'Attainments during experience in previous posts' in answer to a question by him or someone else nor was he in a position to state the precise question asked which had resulted in the note taken by him. He concluded the said note was probably written arising from an answer by the claimant to a question from someone else on the panel with expertise in transplant surgery in relation to the claimant's experience of transplant procedures. He stated to the tribunal, in evidence, that if the claimant had not ever performed transplant surgery 'solo' or had not assisted in as many as 40 procedures, it would have altered his view as to the suitability of the claimant for the post. He said that in appointing a Consultant to such a post, the panel wanted someone who was capable of being an independent Surgeon who could take on a broad range of duties, including surgery in training. He said that he believed that his reference to 40 assisted was to the claimant performing the transplant operation with the assistance of a senior colleague and reference to ten 'solo' was to the claimant acting alone and without the assistance of a senior colleague. He was clear that, if he had written the numbers down they were said by the claimant, albeit he acknowledged that he had no recollection of the precise questions and/or answers and/or the context in which the questions were asked and answers given, which had resulted in his making the said note. Mr Hannon acknowledged that the word 'solo' may not have been used by the claimant; but, if not, it would have been understood by him from the answers given that the claimant had carried out such a number of procedures, as an independent surgeon without the direct assistance of another Consultant. The claimant accepted that, in his curriculum vitae, there was reference to him carrying out transplants with 50 as lead operator and some independent. He suggested this might be an explanation for the figure '40 assisted, and 10 solo' noted by Mr Hannon on the rating form; though he did not see how, in such circumstances, he would have then used the figure 40. Indeed, in particular, the claimant, in evidence, made clear he did not believe that he had been asked, by a member of the panel, to give specific numbers, as suggested by Mr Hannon's note. Mr Hannon, given the fact that he was unable to recall the circumstances/context/ question which had lead to the making of his note was unable to give any support or otherwise to the suggestion made by the claimant as to how this note might have come to be written by him, having regard to the figures set out in the claimant's curriculum vitae.
The tribunal came to the conclusion, that in the course of the interview, some reference was made in some way by the claimant to the carrying out of 40 assisted procedures and to the carrying out of 10 solo procedures – though the word solo would not have been used by the claimant. The tribunal was not satisfied, in the absence of hearing any evidence from Mr Hannon or, in particular, the other members of the panel, as to the precise questions/circumstances which resulted in Mr Hannon's note, that it was possible to determine, from the reference in the rating form of Mr Hannon, what precisely was said by the claimant and/or in what context, and/or in reply to what question.
In addition, it became clear to the tribunal that the term 'solo'/'assisted' were expressions of Mr Hannon and were his interpretation of what the claimant had said. The claimant is German and although the tribunal was satisfied he had a good grasp of English, it was clear, having observed him give evidence to the tribunal, that it was not perfect, as it was not his first language; and, on occasion, before the tribunal, it was apparent that the claimant would put a somewhat literal interpretation of an English expression. In the tribunal's view, given the use of words such as 'solo'/'assisted' it became all the more important to note precisely the question that was asked and the answer given by the claimant and/or its context in order to determine the precise significance to be attached to any such reference in the note of Mr Hannon.
It was also apparent from the rating forms, which were obtained from the other members of the interview panel, and who did not give evidence to the tribunal, and who, in particular, had experience in the particular speciality, such as Professor Bradley and Mr Connolly, that they make no reference to any such numbers, as recorded by Mr Hannon and indeed there was an acceptance by them, as indicated above, that the claimant's experience was limited and/or he would need some support and/or supervision. In the absence of any evidence from those members of the interview panel, it is not clear how they had reached such conclusions and whether they had reached the conclusion from the claimant's curriculum vitae and/or from his answers to specific questions in the course of the interview. However such conclusions were reached, it was apparent to the tribunal, the members of the interview panel, with their expertise in this field, had recognised that his experience was limited and he would need some support and/or supervision. Despite these express concerns, the panel clearly concluded on the basis of the claimant's curriculum vitae and the answers which he had given to the interview panel that the claimant had satisfied the essential criteria, namely broad general experience in renal failure and transplant surgery.
Mr Hannon was also unable to clarify to the tribunal in relation to what period during the claimant's career, the numbers, noted by him, referred to and, in particular, whether this related to his work, as set out in his curriculum vitae in Great Britain, Germany or both.
Mr Hannon's notes make no reference to training. Professor Bradley, as the tribunal ascertained from his rating form, albeit this would not have been known to the disciplinary and appeal panel as they did not see it, expressly acknowledged under the heading 'Technical Skills' that the claimant has 'training in the relevant sub-speciality, ie transplantation' – 'C'. Professor Bradley, who is the external expert on the panel makes no reference on what basis he reached that conclusion; and, in particular, whether he did so on foot of any question put to the claimant by any member of the interview panel or arising from an answer given by the claimant or whether he did so from the claimant's application form/CV. He also makes no reference, in his note, whether any training was ongoing and/or completed and/or had been carried out for any specific period. The tribunal noted, in this context, that the essential criteria required 'Broad general experience in renal failure/transplant surgery' and that the desirable criteria under 'experience and job training' referred to experience in undergraduate and postgraduate teaching of surgery. There was no express reference in the criteria to training carried out by the claimant himself. However, again Professor Bradley recognised that the claimant had training in the relevant sub-speciality, ie transplantation under technical skills. The other rating forms did not expressly refer to training.
"3. Terms and conditions
The terms and conditions of service of this appointment are set out in the Trust's Handbooks which are incorporated into and form part of your contract.
17. Disciplinary procedure
Details of the disciplinary procedure contained in this Handbook. If the Trust is dissatisfied at any time with your performance, capability or conduct you will be subject to the disciplinary procedure. The disciplinary procedure is attached at Appendix 4.
18. Grievance procedure
The procedure for raising any grievance is set out in the attached Appendix 5 to this statement. Any grievance relative to your employment should be raised with your Clinical Director in accordance with the procedure.
28. Changes in terms and conditions
The Trust shall be entitled to vary the incorporated terms and conditions as specified in the Trust's Handbook. Any changes or variations in the incorporated terms and conditions shall be reflect in the Trust's Handbooks one month from the change being effected."
Insofar as relevant and material the said procedure stated as follows:-
"2 Principles
The following general principles are applicable in all disciplinary cases:-
(a) No disciplinary action will be taken against an employee until the case has been fully investigated.
(b) At every stage in the procedure the employer will be advised of the nature of the complaint against him/her and will be given the opportunity to state his/her case before any decision is made.
(c) At all stages the employee will have the right to be accompanied by a shop steward, employee representative or work colleague during the disciplinary process.
(d) No employee will be dismissed for first breach of discipline except in the cases of gross misconduct where the penalty will be dismissal.
(e) An employee will have to right to appeal against any disciplinary penalty imposed.
5. Responsibility for Disciplinary Action
Disciplinary action shall be the responsibility of the Trust Board or a duly authorised level of management to which disciplinary powers have been delegated [hereinafter referred to as the Disciplinary Authority]. For the purposes of this matter, the said authority was defined as Chief Executive and Director of Personnel or suitably delegated officers.
8. Formal action – investigation
The disciplinary authority is responsible for ensuring an investigation into alleged disciplinary offences is carried out.
The investigating officer is responsible for establishing the facts of the case. As part of the investigation, where appropriate, a personal interview with an employee may take place and he or she can be accompanied by a local representative of the staff organisation or a fellow employee. An employee who has been suspended should be available at reasonable notice to the investigation officer.
9. Disciplinary hearing
If, after investigation, it is decided that the disciplinary hearing should be established, the employee must be informed in writing in advance outlining the allegations and the rights to representation. At the hearing the investigation officer will present the case on behalf of management and the employee will be given the opportunity to state their case. Witnesses can be called by either side to the proceedings. At the end of the hearing the employee or the representative will be given the opportunity to make final representations to the disciplinary authority prior to any decision being made.
…
10. All disciplinary decisions will be conveyed in writing to the employee and will include details on the right of appeal …
(b) Whether a decision had been taken to dismiss then the notification will include the reasons for dismissal, the employee's right of appeal, the type of dismissal, the effective date of dismissal.
11. Appeals
The appeal, which should state the grounds thereof, must be lodged with the Personnel Director within seven working days of receipt of the written notice conveying the decision of the disciplinary authority. The hearing of the appeal should take place within 20 working days of the receipt of the appeal by the Personnel Director although in exceptional circumstances this period may be extended.
Every reasonable effort will be made to arrange an agreed date for the hearing. The employee should be given at least five working days notice for the date of the hearing together with a statement of the right to appear personally, either alone or with a local representative of the staff organisation of a fellow employee. If the employee considered it essential legal representation may be allowed at the employee's expense.
13. Appeal hearing
The following procedure shall operate at the appeal hearing:-
(a) No member of the Trust or officer thereof who was directly involved in the circumstances leading to the disciplinary proceedings or anyone who acted as an assessor at the disciplinary hearing, shall take any part in the hearing except as a witness or as the presenting officer.
…
(d) At the hearing the case against the employee should be presented first and any witnesses called in support of the case should also be examined at this stage. The Chairman shall conduct the hearing and examine witnesses, although other members of the committee may put further questions.
(e) The employee shall be present during the hearing of all the evidence put before the appeal committee and shall have full opportunity personally, or through a representative, to respond and to question any witnesses.
…
(f) After all witnesses have been heard, both sides should be given the opportunity to summarise with management's representative speaking first, following which all parties except members of the appeal committee, its secretary and the assessor, shall retire.
(g) The appeal committee shall have the right to recall any witness but if this done, both sides and their representatives shall have the right to be present while the witness is further questioned.
14. Decision by the appeal committee
The appeal committee have the authority to confirm, set aside or alter the decision of the disciplinary authority. The employee should be notified in writing without delay of the decision of the appeal committee. Where the decision involves a variation of the disciplinary action the appeal committee should state the reasons for it and the operative date. Where an employee is reinstated following dismissal then any arrears of pay for the period between the date of dismissal and date of appeal will be paid by the Trust.
Section 40A
Disciplinary Rules
Introduction
1. In accordance with Paragraph 3 of the Trust disciplinary procedure, details of the Trust disciplinary rules are present below.
2. They are categorised under hearings of 'gross misconduct' and 'misconduct'. In determining the appropriate heading under which particular events should be considered, managers are required to make a judgment as to the seriousness of the case, after careful consideration has been given to the individual circumstances surrounding it. Gross misconduct is behaviour of such a nature that the Trust is justified in no longer tolerating the continued employment of the individual who commits such an offence.
Gross misconduct
4. The following are examples of offences which may be regarded by the Trust, in light of the circumstances and nature of each particular case, as gross misconduct, thus warranting dismissal without previous warnings. This list is to be regarded neither as exclusive nor exhaustive.
…
4.9 Falsification of qualifications which are a stated requirement of employment, or any information used in support of an application for any post in the employment of the Trust (subject to the conditions of the Rehabilitation of Offender Act 1974); or any other misrepresentation which results, or could result, in financial gain."
Following advice received by the General Medical Council and NCAA, Dr Fullerton asked the General Medical Council to initiate an investigation in the matter. In light of this decision, Dr Fullerton wrote to the claimant on 6 December 2004 informing him of the said investigation and that in the circumstances he was to be placed on precautionary suspension.
In the letter he referred to the specific serious allegations, which were to be the subject of the said investigation:-
"Serious allegations have been brought to my attention relating to your professional conduct and performance. These include allegations of:-
- excessive complication rates following surgery;
- excessive failure rates relating to vascular excess and peritoneal dialysis catheter insertion;
- inadequate consent procedures;
- not giving sufficient weight to the advice of other members of the team;
- inappropriate behaviour towards other members of the team;
- questionable clinical decision-making.
For the purposes of these proceedings, it was not necessary for the tribunal to consider these allegations in any further detail.
In consideration of the said allegations, the General Medical Council then decided to conduct an assessment of the claimant's performance; which it was hoped would be able to be conducted within a relatively short period of some four/five months. Unfortunately the above timeframe turned out to be inaccurate and further the General Medical Council subsequently decided not to proceed with a performance assessment of the claimant's work; but rather, in view of the nature of the serious allegations, to refer the matter to a Fitness to Practise Panel, which could ultimately decide whether the claimant was entitled to remain on the appropriate medical register. The claimant was so informed by Dr Fullerton in a letter dated 6 February 2006. In that letter, Dr Fullerton also informed the claimant of a further matter of concern which had come to the attention of the Trust, but which was not to be part of the matters, the subject-matter of the reference to the General Medical Council:-
"The Deputy Medical Director at the Lanarkshire Trust has confirmed that concerns were raised about your clinical ability, your behaviour and your refusal to co-operate with an appraisal (which had to be abandoned because you refused to discuss your training, past experience and people you had worked with). A disciplinary hearing was convened for September 1997, but you resigned before the hearing took place. This does not form part of the GMC case as set out in 21st December letter, but it is clearly another matter of concern for this Trust in light of subsequent events."
Dr Fullerton also referred, in the course of his letter, to 'new procedures' which had been recently approved by the Department of Health & Social Services & Public Safety and that the claimant's case would be managed within these new disciplinary processes. The tribunal noted that, at this stage, other than the above reference to the matters alleged to have taken place in September 1997 at the Lanarkshire Trust, none of the matters which ultimately were the subject of the disciplinary hearing and ultimately led to the claimant's dismissal had been raised by the respondent.
The said document was to introduce a new framework document for handling concerns about the conduct, clinical performance and health of medical and dental employees. The introduction to the document made clear:-
" …
(2) Throughout this framework where the term 'performance' is used, it should be interpreted as referring to all aspects of the practitioner's work, including conduct, health and clinical performance. Where the term 'clinical performance' is used, it should be interpreted as referring only to those aspects of a practitioner's work that require the exercise of clinical judgment or skill.
(5) Local conduct procedures will apply to all concerns about the conduct of a doctor or dentist."
These new procedures, had come into force arising from some concern, in the past, about the way in which complaints about doctors and dentists had been handled.
"Introduction
(1) This Section applies when the outcome of an investigation under Section 1 shows that there is a case of misconduct that must be put to a conduct panel (Paragraph 38 of Section 1). Misconduct covers both personal and professional misconduct as it can be difficult to distinguish between them. The key point is that all misconduct issues for doctors and dentists (as for all other staff) are matters for local employers and must be resolved locally. All misconduct issues should be dealt with under the employer's procedures covering other staff where conduct is in question. [Tribunal's emphasis]
(2) It should be noted that if a case covers both misconduct in clinical performance issues it should usually addressed through a clinical performance procedure (Paragraph 5 of Section IV refers) …
(4) Employers are strongly advised to seek advice from NCAS in misconduct cases, particularly in cases of professional misconduct.
Examples of misconduct
(7) Employer's Code of Conduct should set out details of some of the acts that will result in serious breach of contractual terms and will constitute gross misconduct, and could lead to summary dismissal. The Code cannot cover every eventuality. Similarly the Labour Relations Agency (LRA) Code of Practice provides an non-exhaustive list of examples. Acts of misconduct may be simple and readily recognised or more complex and involved. Examples may include unreasonable or inappropriate behaviour such as verbal or physical bullying, harassment and/or discrimination in the exercise of their duties towards patients, the public or other employees. It could also include actions such as deliberate falsification or fraud.
(8) Failure to fulfil contractual obligations may also constitute misconduct. For example, regular non-attendance at clinics or ward rounds, or not taking part in clinical governance activities may come into this category. Additionally, incidents of failing to give proper support to other members of staff including doctors or dentists in training may be considered in this category.
(9) It is for the employer to decide upon the most appropriate way forward including the need to consult the NCAS and their own sources of expertise on Employment Law. If a practitioner considers that the case has been wrongly classified as misconduct, he or she (or his/her representative) is entitled to use the employer's grievance procedure. Alternatively, or in addition, he or she may make representations to the designated Board member. [Tribunal's emphasis]
(10) In all cases where an allegation of misconduct has been upheld consideration must be given to a referral to GMC/GDC."
Dr Fullerton had received a letter from Mr Chang dated 12 November 2004 in which Mr Chang stated, inter alia, in particular:-
" …
"He was appointed to St George's Hospital as a (Post-CCST) FTN trainee in March 2000 and suspended and reported to the GMC in November 2001.
GMC exonerated him due to lack of evidence and he was allowed to remain on the specialist registrar. I wrote a letter of grave concern with a request that it be kept with the documents on his file.
I have no idea what he did after he left St George's. I subsequently heard that he had been appointed as Consultant Transplant Surgeon in the Belfast City Hospital.
…
As Clemens was suspended in November 2001, 4 months from the end of his training period, it cannot be said that he had completed his training. As I have stated above, his surgical skill level was that of a senior SHO or a junior registrar.
…"."
The tribunal noted that, in the course of his report, Dr Richardson said, having examined the documents relating to the claimant's application for the post and also, in particular, the correspondence which had been received by Dr Fullerton from other medical directors, including the above from Mr Chang:-
"Various concerns have been raised over training, however, Mr Gerstenkorn does hold a CCST and I feel it has to be accepted that he has fulfilled training requirements."
This report was not seen by the Disciplinary Authority. The appeal panel had included the report in its papers; but took no account of what was stated by Dr Richardson.
"The allegations made against you are as follows:-
(1) At the time of your application for the post of Consultant in Renal Failure/Transplant Surgery at the Belfast City Hospital you did not make the appointment panel aware of key information relevant to your appointment.
- You did not indicate that you were subject to disciplinary proceedings when employed at Hairmyres Hospital, and were due to attend a disciplinary hearing on 30 September 1997. You did not advise that you resigned from your post on 23 September 1997 with an effective date 30 September 1997 and that you did not attend the disciplinary hearing.
- You failed to inform the panel that you had been referred to the General Medical Council following the events at Hairmyres Hospital.
- You failed to inform the panel you were placed on suspension by St George's Healthcare NHS Trust, London, because of questions relating to your professional performance and conduct.
- You failed to inform the panel you were referred to the General Medical Council subsequent to the events at St George's Healthcare Trust.
- You failed to advise the panel you had not successfully completed your period of training in transplant surgery at the South Thames Deanery.
… ."
"I am writing further to my letter of 14 July 2006. The Trust is continuing to investigate the matters outlined in my letter. As part of that investigation I now require you to provide the information requested below:-
- In the course of your interview for the post of Consultant Surgeon at Belfast City Hospital you advised the selection panel that you had carried out 40 supervised and 10 unsupervised transplants. In a later conversation with myself you told me you had retained a book with records of every procedure you have carried out. As these details are available to you, please provide the following information with regard to the 50 procedures to which you referred at the interview:-
- The full name of each patient.
- The hospital in which the procedure took place.
- The name of the supervising consultant (when one was present).
It is the intention of the Trust to confirm this information with the organisations concerned and the relevant medical staff as part of its investigation.
- The Trust understood you had successfully completed your transplant training in the South Thames Deanery. You are required to provide documentary evidence that this is the case.
It is the Trust's intention to confirm this information with those concerned.
- Your CV and application form states that you worked at a number of UK hospitals. Please provide a list of names of Senior Consultant medical staff at each of these hospitals who can confirm you left those institutions in good standing.
Again, it is the Trust's intention to confirm this information with those concerned.
- Please advise me of the circumstances leading to your resignation from Hairmyres Hospital prior to a planned disciplinary hearing on 30 September 1997. You must also explain why you did not attend this hearing.
… ."
"Please provide me with the written information which you seem to have about me regarding my interview in May 2003, so that I can address all issues appropriately."
Significantly, other than the rating form of Mr Hannon, the claimant was given no other information about the interview itself, including, in particular, the rating forms of the other members of the interview panel.
He also referred to the fact, which Mr Barkley confirmed in evidence to the tribunal, that Mr Barkley had been previously asked to do an investigation into the claimant's CV and that following discussion between him and the claimant there remained no issues in relation to the places where the claimant had worked, and times thereof, as set out in the claimant's CV. Although the letter from Mr Barkley referred to a conversation between the claimant and Mr Barkley and that the claimant had told him he had retained a book with records of every procedure he had carried out, the tribunal was left in some doubt that the claimant ever had any such complete record of all procedures he had carried out. There was no doubt that there was a conversation between them, of a casual nature, when the claimant was clearing out his office following his suspension by the Trust. The tribunal further accepts that the claimant indicated to Mr Barkley he had amongst his papers, he was retrieving, from his office, some records of his procedures, which would be of use in defending himself in relation to the allegations, the subject of the GMC procedures. These allegations related to his work in Belfast. It does not accept the claimant however told Mr Barkley that he had a record of all procedures he had ever carried out, both before and after he took up the post in Belfast. Mr Barkley did not examine the records the claimant was retrieving. Indeed, at the time, the conversation was of little or no significance to Mr Barkley. It only came of significance following Dr Fullerton's correspondence with Mr Chang and investigations were begun by Dr Fullerton into the matters, the subject of the disciplinary procedures, which led to the claimant's dismissal.
At that point, Mr Barkley recalled his earlier conversation with the claimant. He was aware Dr Fullerton was attempting to gather evidence in relation to the above matters. He had no note of what had been said by the claimant. The tribunal concluded that Mr Barkley wrongly assumed the claimant's reference to having record of procedures included records of procedures both before and after the claimant took up his post in Belfast. Indeed, Mr Barkley had informed Dr Fullerton the record was in the form of some sort of log book, though he accepted this was his term. He wrongly, by use of such a term, gave the impression of a more formal record – whereas the records the claimant retrieved were far less formal than the above term suggested.
" … A disciplinary process is underway and as part of that process I am gathering evidence before a decision is made on whether a disciplinary hearing is to take place. The questions in my letter of 22 August 2006 relate specifically to this matter. The letter was quite clear with regard to the information required. Failure to provide this information will be taken as a decision by you not to participate in the investigatory process with regard to issues of personal conduct.
In the event that the evidence does indicate a hearing is appropriate, it will take place as soon as possible … ."
"In regard to your points, there is a major problem with releasing personalised patient information to you from a hospital in another country. The individual patients have to agree that I can release this information to you and in addition the Legal Department of the involved hospital has to give me permission. This will take a significant amount of time and cannot be solved in 24 hours as you demand. There is documentary evidence regarding my training in London which is also held by the GMC. You have already had correspondence with London and therefore they should have provided you with this information. Please let me know which other additional information is missing.
Regarding my CV, as you very well know Mr Barkley, I had asked you on numerous occasions in the past, which additional information you required. I have given you names of my seniors and you have confirmed that everything was complete so again which names are missing and from which employment?
I have sent you a copy of Mr Watson's report about me; he was my senior at Hairmyres Hospital in 1997. I have never worked with or for Mr Gregori.
I have already explained to you that I did not resign from Hairmyres in 1997. I was working as a Locum on a week-to-week basis until the 7th October 1997 – see Mr Watson's report."
Neither Mr Barkley nor any member of the Trust took up the claimant's suggestion. Indeed Mr Barkley recognised the difficulties referred to by the claimant in seeking such information, in particular from outside the United Kingdom. Given Mr Chang's correspondence with Dr Fullerton, the tribunal would have been surprised if Mr Chang would not have, at that time, given some assistance, albeit he might have been limited in the specific details he could have given, having regard to patient confidentiality. However no attempt was made to see to what extent Mr Chang could have assisted.
In particular, the claimant was informed that he had failed to provide the Trust with a satisfactory response to the issues raised in Dr Richardson's report and the disciplinary hearing would be held on 28 September 2006.
It further stated:-
"The terms of reference for the hearing are as follows:-
- At a selection panel on 13 May 2003 you indicated that you had a personal record of 40 supervised and 10 unsupervised successful transplants. You later confirmed to the Director of Personnel that this was the case. However you have failed to provide evidence to substantiate the claim. This evidence must be made available to the disciplinary authority at the forthcoming hearing.
- You did not attend a disciplinary hearing which had been convened to take place at Hairmyres Hospital on 30 September 1997. The Trust requires a satisfactory explanation as to why you did not attend this hearing.
- It is alleged that you misled the selection panel at the time of your appointment when asked about the successful completion of your training in transplant surgery at the South Thames Deanery. This is a most serious allegation, amounting to gross misconduct. You will be required to produce evidence at the disciplinary hearing to prove that you did successfully complete this training as you would not otherwise have been appointed to your current post."
The letter enclosed a copy of the Trust's disciplinary procedure, together with the letter from Mr Chang to Dr Fullerton, dated 12 November 2004, which Dr Fullerton had received, amongst other correspondence, as set out in Paragraph 2.14 of this decision. There was no dispute that the use of the term, 'terms of reference' referred to 'allegations/charges', which were to be the subject of the said disciplinary hearing which had been arranged for 28 September 2006. The said charges, as seen above, made no reference to Paragraph 4.9 of the examples of gross misconduct, referred to in Paragraph 2.9 of this decision.
The claimant was also informed in the said letter that the disciplinary authority to consider the matter was to include Mr J P Coey, Chief Executive. It is necessary to note Mr Coey had also been a member of the interview panel, the subject-matter of the said terms of reference. The said authority also included Mr A Brown, Director of Operational Support. Both were members of the Trust's Board. Mr Coey did not give any evidence to the tribunal in relation to either his involvement with either the interview panel or in relation to this membership of the disciplinary authority – even though the terms of reference related to what occurred at the interview panel of which he was a member. Indeed, given his involvement with the interview panel, the tribunal had serious concerns about his membership of the disciplinary authority. Although under the procedures, Mr Coey as Chief Executive, was entitled to be a member of a disciplinary authority in relation to the dismissal of a person such as the claimant, it was not a requirement. A suitably delegated officer, with no previous involvement in the matter could have taken his place. No consideration appears to have been taken to his previous involvement in the interview of the claimant, as a member of the interview panel. In the appeal procedures, referred to at Paragraph 2.10 of this decision, it is expressly provided:-
"No member of the Trust or officer thereof who was directly involved in the circumstances leading to the disciplinary proceedings … shall take part in the hearing, except as a witness or as the presenting officer."
As shall appear subsequently in this decision, the second term of reference, relating to a failure to attend a disciplinary hearing at Hairmyres Hospital on 30 September 1997, was not upheld on appeal. In the circumstances, the tribunal has not felt it necessary to consider this matter in detail for the purpose of this decision.
The minutes record that 'the panel noted that Mr G had sought to invoke the grievance procedure only after failing to attend the hearing convened to take place on 28 September 2006'. It is correct that the disciplinary hearing arranged for 28 September 2006 did not proceed; but this was on the basis that the disciplinary authority had decided, albeit reluctantly, to grant the claimant's application for an adjournment. In addition, in considering the issue of whether or not to proceed with the disciplinary hearing, in advance of any grievance hearing, the minutes record as follows:-
"The disciplinary authority was set at the same level as a grievance panel, ie two member of the Trust Board. Both members are satisfied that, although specific issues regarding Mr G's clinical performance/competence (Fitness to Practise) would be considered by the GMC in due course, the issues described in the Trust's letter of 18 September did constitute potentially gross misconduct. The advice from the NCAS and the relevant disciplinary procedures indicated that the Trust need not await completion of the GMC proceedings before considering these allegations."
In light of the foregoing, the disciplinary authority decided to proceed with the disciplinary hearing in advance of any grievance hearing.
No member of the grievance panel gave evidence to the tribunal; but Mr Barkley, who prepared a report of the grievance hearing, confirmed in evidence, as set out in his report, that the grievance panel had concluded, inter alia, as follows:-
" … the panel in particular had considered the relevant paragraphs in the framework document. The panel advised me that it had noted the following:-
- That an allegation had been made that Mr Gerstenkorn had applied for a position in the hospital and in doing so had deliberately mislead the appointments panel.
- When challenged regarding this matter Mr Gerstenkorn had not provided satisfactory explanations to the Trust as to why he had done this. The panel noted that there may be other issues with regard to Mr Gerstenkorn's clinical work but these were not a matter to be addressed by the panel.
Having considered the above, the panel had decided that the Trust was correct in considering Mr Gerstenkorn's case under the personal conduct provisions of the framework document.
… ."
However, in the tribunal's view, the decision ultimately taken by the grievance panel was a decision which it was entitled, in the circumstances, to take, having regard to the terms of the framework document; (and, in particular, the terms set out in Paragraphs 2.11 and 2.12 of this decision) and since the allegations, the subject-matter of terms of reference were matters of misconduct and not performance were therefore appropriate, in the tribunal's judgment, to be determined under the Trust's internal conduct procedures. The tribunal does not consider therefore that, if the grievance had been heard prior to the disciplinary hearing, as it considers it should have been, it would have made any difference to the ultimate decisions in this matter, which were taken at the disciplinary hearing/ appeal hearing, following the outcome of the grievance hearing. A disciplinary hearing/appeal hearing, under the Trust's internal conduct procedures would always have been required to have taken place. These allegations were not appropriate to be referred to the GMC 'Fitness to Practise' procedures.
As set out above, the disciplinary hearing was arranged to take place on 18 October 2006.
On 17 October 2006, a self-certificate, for the purposes of obtaining statutory sick pay, and signed by the claimant was left at the Personnel Department of the respondent. The certificate stated, inter alia, that the claimant since 16 October 2006 was suffering from 'acute onset of severe hip pain'. It did not state when it would end. The document was stamped with the name and address of the doctor, 'Dr F McMullan', EO248 The Surgery, Ashton Centre, 5 Churchill Street, Belfast, BT15 2BP. The document, when it was handed in, was not accompanied by a covering letter, nor with any written request for an adjournment of the disciplinary hearing. The disciplinary authority were made aware of the said self-certificate and considered its contents and whether it should proceed, in light of the said certificate and the claimant's absence from the hearing. In the minutes of the disciplinary hearing, it is recorded, as follows:-
"The panel noted that Mr G had submitted a self-certificate indicating acute hip pain. However the panel noted that Mr G had failed to attend the previous hearing, despite being available to do so, and that the nature of his debility would not necessarily prevent his attendance. Furthermore the Trust advised Mr G that it would proceed to consider his case on the basis of his written submissions if he did not attend. In the circumstances the case proceeded in his absence."
On 19 October 2006 a certificate signed by the doctor, Doctor F McMullan, on 17 October 2006, was handed into the Personnel Department of the Trust. It referred to a diagnosis of hip pain and that the claimant should refrain from work for a period of two weeks.
The tribunal noted that the doctor's stamp referred to EO248 (see above) but also gave an address as The Surgery, Kennedy Centre, Belfast, BT11 9AE. The claimant accepted it was his writing on the self-certificate and the doctor's certificate stating the said documents had been delivered to the Trust. He suggested that his then solicitor, Mr Donaghy, had delivered the said documents on his behalf to the Trust. He maintained that he did not do so; but his evidence on how the documents came to be given to Mr Donaghy for delivery was unclear and most unsatisfactory. Mr Donaghy did not give evidence to the tribunal. Understandably as the claimant was not local, the claimant's precise knowledge of the address where he had attended the doctor was somewhat uncertain. However, the tribunal, in the absence of any other evidence, is satisfied that the doctor's certificate, as signed by the doctor, is authentic and that he had, as set out in the said certificate, diagnosed the claimant with hip pain and had advised that he refrain from work for a period of two weeks. The tribunal was further satisfied that the claimant attended Dr McMullan on 17 October 2006 at a surgery conducted by Dr McMullan, albeit the precise address of that surgery was not clear. The claimant contended that at all times he had been anxious to attend the hearing, but having suffered the sudden onset of the illness relating to his hip he had been unable to do so. The tribunal found it unusual that if Mr Donaghy, the claimant's then solicitor, as the claimant contended, had left the self-certificate at the Trust he had not verbally or in writing sought, on behalf of the claimant, an adjournment of the hearing to take place the following day. The tribunal noted that the certificate signed by the doctor was signed on 17 October 2006 but was not delivered to the Trust until 19 October 2006. The claimant was unclear when or how he obtained this certificate from the doctor and again the tribunal found it unusual that Mr Donaghy, if, as contended by the claimant, had also delivered the said medical certificate to the Trust, he had not done so without any covering letter. However, it is correct the medical certificate of the doctor was not before the disciplinary authority, who only had before it the self-certificate signed by the claimant. On the basis of the subsequently received medical certificate signed by the doctor, the tribunal is satisfied that at the relevant time the claimant was suffering from hip pain, with the consequence the doctor stated that he was to refrain from work for a period of two weeks. The claimant, in evidence to the tribunal, stated that he was in such severe pain that he had had great difficulty in travelling by car, driven by a friend, to the doctor and had had to return home following his visit to the doctor and that, as a result, he had not been fit to attend the hearing. He acknowledged that neither the self-certificate nor the subsequent medical certificate by the doctor made any express reference to his ability to attend any hearing, in light of this pain; and the doctor's certificate had confined itself to referring to the necessity to refrain from work for a period of two weeks. Despite the absence of any covering letter or request for an adjournment, whenever the self-certificate was delivered to the Trust, it is clear from the minutes of the disciplinary hearing that the disciplinary authority, in the tribunal's view, correctly, decided that it would have to consider, in the circumstances, an adjournment, following receipt of the self-certificate; and whether the hearing should proceed in the absence of the claimant. It is correct that, in its letter of 28 September 2006 granting the adjournment of the hearing on that date, the claimant was informed, as set out above, that he was required to attend the hearing on 18 October 2006 and that if he failed to do so this hearing would proceed in his absence on the basis of written submissions. However, the tribunal noted that, in deciding to proceed in the claimant's absence, the disciplinary authority again relied on the fact that 'Mr G had failed to attend the previous hearing, despite being available to do so' – which was not correct as the Trust, however reluctantly, had agreed to the adjournment, as set out above.
The tribunal had some sympathy for the difficulty in which the disciplinary authority found itself, given its earlier reluctance to grant an adjournment. It was apparent the disciplinary authority, given the earlier application for an adjournment, albeit granted, had suspicions that the claimant had, by use of the self-certificate, advanced a false or exaggerated medical ground for non-attendance. If a party is genuinely unfit to attend the hearing then generally an adjournment ought to be granted, however late the application is made. Ill-health is not only unavoidable but frequently unforeseen. The practical problem for the disciplinary authority, given their suspicions, was how to assess the self-certificate and the medical reason given. The reason set out on the self-certificate was subsequently shown to be correct. Neither of the members of the disciplinary authority were medically qualified. However the disciplinary authority concluded that the nature of the debility would not have necessarily prevented the claimant's attendance at the hearing. The tribunal did not consider the disciplinary authority were qualified to reach that conclusion. The doctor, in his medical certificate, obtained subsequently, stated the claimant was to refrain from work for two weeks. It did not refer to attendance at a hearing; but the tribunal were of the view the reference to work could be taken, without further enquiry, to have included attendance at a disciplinary hearing arranged by his employer, an activity which he was required to attend as an employee of the Trust, as part of his work. The tribunal concluded the disciplinary authority were wrong in the face of the self-certificate to proceed in the claimant's absence and to make the assumption, without any expertise or further enquiry, that his debility would not have prevented him attending. It should, in the view of the tribunal, have adjourned and sought an urgent medical certificate; and, if not satisfied with that, made further enquiries and/or had the claimant examined. Such a certificate was in fact supplied on 19 October 2006. However, the tribunal consider that the claimant himself contributed to the decision to proceed in his absence by not contacting the Trust, by phone and/or e-mail, if necessary to explain the situation and/or sending himself, or through his solicitor, a proper written application for an adjournment and/or informing the tribunal he had been examined by a doctor, who would be providing in due course a 'sick line' for two weeks, confirming the diagnosis of hip pain. If that had been done, the tribunal do not believe the disciplinary authority would have proceeded in the claimant's absence. Such action by the claimant would also have gone a long way to have allayed the disciplinary authority's suspicions of the genuineness of the claimant's illness and ability to attend the hearing.
" … I am making some enquiries regarding Mr Clemens Gerstenkorn, who was on a training programme in transplant surgery in the South Thames Deanery from March 2000, based at St George's Hospital and under the supervision of Mr Rene Chang. I understand that Mr Gerstenkorn was suspended from duty at St George's and reported to the GMC in November 2001.
Mr Gerstenkorn was subsequently appointed as a Transplant Surgeon to this hospital. His appointment panel believed that he had successfully completed his training in transplant surgery at the Deanery.
I am in receipt of correspondence from Mr Chang indicating that he did not successfully complete his training as he was suspended four months from the end of his training period, and his surgical skill level was that of a Senior SHO or a Junior Registrar. It therefore seems unlikely that he had a satisfactory penultimate year assessment.
I am aware that you were Associate Dean at the time of these events. I would be grateful if you could confirm whether Mr Chang's views are correct."
By e-mail dated 28 September 2006, Dr Ginsberg replied as follows-
" … Dr Clemens Gerstenkorn was indeed appointed within London Deanery as a FTTA/LAT in renal transplantation. Interviews were held on 3 December 1999 and an offer of appointment was made for a placement at St George's commencing 1 February 2000 for a period of two years. The exact designation of the appointment was anomalous, since Dr Gerstenkorn was already on the specialist register and was not therefore eligible to be appointed as a FTTA. It was agreed that the appointment was to be regarded as a LAT.
I can also confirm that Dr Gerstenkorn was suspended by St George's NHS Trust on 27 November 2001 as a result of a complaint following an incident at an organ retrieval at another hospital. A complaint was made to the GMC Fitness to Practice Committee. I have no record of any disciplinary or other hearing being conducted either by St George's NHS Trust or by the GMC.
The date of the suspension meant that Dr Gerstenkorn did not complete a full two years in-post and I have no record of the Deanery awarding any RITA form or statement of completion of training.
… ."
The above correspondence between Dr Fullerton and Dr Ginsberg was before the disciplinary authority, together with the earlier correspondence from Mr Chang and the report of Dr Richardson and the correspondence received from the claimant, referred to previously, but the tribunal was not satisfied that this correspondence between Dr Ginsberg and Dr Fullerton was sent to the claimant prior to the date of the disciplinary hearing, albeit it was expressly referred to and relied upon in the decision of the disciplinary authority (see Paragraph 2.35 of this decision).
"I cannot recall that I named specific numbers during my interview on the 13th May 2003, it is possible that numbers were suggested by members of the selection panel at the time. I did speak to the Director of Personnel, Mr Berkley, on a few occasions, but again I cannot recall mentioning specific numbers. I enclose a summary letter of Mr Talbot from Newcastle, information from my personal notes regarding kidney transplant dates between 3-2000 and 12 – 2001, recommendations from St Mary's, letters from Tuebingn and Augsborg. I was not informed about a disciplinary meeting at Hairmyres on 30 September 1997. … .
…
I did not intentionally mislead the selection panel at the time of my appointment. I answered the questions which were asked. Nobody mentioned the terms 'successful completion of training in transplant surgery at the South Thames Deanery' this term is not defined. At the time I was post-CCST and had a successful RITA in June 2001. I had therefore successfully completed my surgical training with additional successful post CCST training in transplant surgery. I enclose copies of my three training assessment forms and two RITA assessments (all satisfactory). In addition I enclose a contract I was given by Guy's Hospital (part of the South Thames Deanery) for the period from 5th November 2001 to 1st March 2002 for further training. I refer again to letters of recommendation from St Mary's which I enclosed and where I worked and was trained successfully until 12th February 2002. In addition I attended King's College Retrieving Team, which is also part the Deanery. It is correct that I did not mention that I was suspended from work at St George's from 27th November 2001 to 28th February 2002 (three months and three days). At that time I was referred by Rene Chang to the GMC, they investigated and did not find any shortcomings. The case was closed in December 2002. It is correct that Mr Chang initiated an alert letter in December 2001 to stop me getting a new appointment in the UK. This alert letter was lifted in December 2002 after I was cleared from the GMC. I applied for the Belfast post around beginning of February 2003. I worked in Germany until the 31st May 2003 after I was appointed in May 2003 to my current post. I was not questioned by the selection panel in May 2003 about my GMC history. The reasons I returned to Germany in April 2002 were that I had found an ideal appointment for training and that I found it difficult due to the alert letter to gain a training post in the UK after the 1st March 2002 until December 2002 when the alert letter was lifted. I assumed that the Belfast City Trust knew about the alert letter and its subsequent lifting, since they were sent to all Chief Executives in the UK. I was not asked about this during the interview.
… ."
Dr Fullerton presented the case on behalf of the Trust. The only witness to be called by the Trust was Mr Hannon.
Dr Fullerton, initially referred to the letter dated 23 August 2006 from Mr Barkley (see Paragraph 2.17 of this decision) and submitted there had been ample time for the claimant to provide all the relevant information sought by the Trust and referred to the claimant's responses to same in subsequent correspondence, as referred to, in particular, in Paragraphs 2.19 and 2.30 of this decision.
Dr Fullerton then referred to the first area of concern relating to the claimant's deployment at Hairmyres Hospital and the written evidence obtained by Dr Fullerton relating to serious concerns regarding his performance as a Senior House Officer and that the claimant had resigned before a disciplinary hearing. The tribunal noted, in particular, as recorded in the minutes, the disciplinary authority made clear the disciplinary hearing was limited, in it consideration to the fact that the claimant had not made the Trust aware of problems at Hairmyres Hospital.
Dr Fullerton also referred to the second area of concern, which, according to the minutes of the disciplinary hearing, was stated to be:-
"The second area of concern related to Mr G's assertion at his interview for the post in BCH that he had successfully carried out 40 supervised and 10 unsupervised transplants. Mr Ray Hannon, Clinical Director (Surgery), in his evidence to the panel confirmed he had made a note of these figures on the rating form, completed at the time of the interview. Subsequently Mr G had told Mr Barkley that he had a book containing details of all operations carried out by him. The panel noted that none of the documents or references submitted by Mr G as evidence confirmed his statement in relation to the transplants. In particular, he had provided no evidence of having carried out any unsupervised transplant. Mr Hannon was clear in his evidence that the selection panel believed Mr G to have been an experienced transplant surgeon who had carried out a substantial number of supervised and unsupervised transplants during his previous experience."
Elsewhere in the said minute, it is recorded that Mr Hannon, in his evidence during the disciplinary hearing 'indicated that the selection panel made its decision on the basis of Mr G's evidence that he was a fully trained and experienced renal failure and transplant surgeon'. Mr Hannon is also recorded as stating that he was satisfied that the selection panel would not have appointed Mr G if the members had been made aware of the concerns which have subsequently been brought to the attention of the Trust.
"You must be honest about your experience, qualifications and position, particularly when applying for posts. You must do your best to make sure that any documents you write or sign are not false or misleading."
"Written evidence from Mr Rene Chang, Director of Transplantation at St George's, indicated that there had been significant reservations regarding Mr G's competence. Mr Chang's letter stated that Mr G had not been allowed to operate without supervision. Mr G had been suspended before completing his period of training. Dr F indicated that Dr Robert Ginsberg, Associate Dean of Postgraduate Education in the London Deanery, had also confirmed that Mr G did not complete his period of training.
Mr G's evidence indicated that an Alert Letter issued on 8 January 2002 following his departure from St George's had been rescinded 11 months later, on 18 December 2002 after the GMC decided not to take further action in relation to the case. He had applied for the post at Belfast City Hospital in February 2003.
Dr F stated at the time of his interview, Mr G had provided references from two Consultant Surgeons who worked at St Mary's Hospital, London. Dr F pointed out that Mr G had not held a substantive appointment at St Mary's. Rather he had undertaken additional on-call responsibilities at St Mary's in order to extend his clinical experience whilst employed on the training scheme based at St George's Hospital. Mr G had been provided with a honorary contract with Guys and St Thomas Trust with effect from 5th November 2001. The panel noted that this was a honorary arrangement to extend the scope of his training and that he was in fact suspended from his training post in November 2001 and referred to the GMC. This would have ended any arrangement he had with St Mary's or Guys. Dr F had found no evidence that Mr G had ever taken up the honorary contract at Guys. The suspension took effect four months before completion of his training appointment, which was not renewed after the rescinding of the alert letter. … ."
It has to be acknowledged, as set out in the minutes of the disciplinary hearing, that reference was made to the claimant's contention in his written evidence that he had not been asked about the successful completion of his training in renal failure and transplant surgery – though no further enquiry or investigation was made by the disciplinary authority in the face of his express denial that he had been asked any such question.
The tribunal was satisfied that the disciplinary authority did not have the rating forms of the members of the interview panel, other than that of Mr Hannon. It was also satisfied there was no evidence given to the disciplinary authority, or investigation carried out by it, in relation to what were the actual questions asked by the interview panel of the claimant. Although Mr Coey was a member of the interview panel and the disciplinary authority there was no evidence before the tribunal what information, if any, of what had taken place at the interview, Mr Coey took into account in considering this matter; and, in particular, in assessing the evidence to the disciplinary authority of Mr Hannon, who like him was a member of the interview panel.
"In the circumstances the panel proceeded to consider the evidence presented by Dr Fullerton in respect of each of the three issues outlined in the letter dated 18th September. Careful consideration was also given to your written submission dated 27th September with enclosures:
- Mr R J Hannon, Clinical Director (Surgery), advised the panel that you had stated during the interview for your post that you had carried out 40 supervised and 10 unsupervised transplants. Mr Hannon confirmed this evidence was significant in his assessment of you as a suitable candidate for the post of Transplant Surgeon. However the disciplinary authority noted that you had failed to provide evidence to substantiate your claim despite your earlier assertion to the Director of Personnel, Mr M C Berkley, that you had a personal record of all the operations which you had carried out. Dr Fullerton indicated that he had been unable to obtain verification of your claim from any of the hospitals at which you had been employed in the UK. The panel also noted that Mr Barkley had originally requested this evidence in a letter to you dated 22nd August 2006.
- Evidence was provided to the panel which indicated you had resigned from your post at Hairmyres Hospital before a disciplinary hearing was due to take place. In your submission you refuted this information, however the panel concluded that there were sufficient reservations about the matter to justify the concerns expressed by Dr Fullerton.
- The panel was provided with written evidence from Mr Rene Chang, Director of Transplantation at St George's Healthcare Trust, that you did not successfully complete your training as a Specialist Registrar during your period of employment in the South Thames Deanery, London. Mr Chang indicates that you were suspended four months before the end of your training period. He states that you were very closely supervised and that you would not have been allowed to carrying out an operation without consultant supervision.
- Doctor Robert Ginsberg, Associate Dean of Postgraduate Medicine (London Deanery), has confirmed that there is no record that you successfully completed your training in transplant surgery.
- Although you have submitted a copy of a letter dated 31st October 2001 offering you a honorary appointment as a Clinical Fellow in Renal Transplantation at the Guy and St Thomas Trust from 5th November 2001 to 1st March 2002, Dr Fullerton has been unable to obtain verification that you took up this post."
- In his evidence during the hearing, Mr Hannon was clear that you had led the selection panel to believe that you had completed your training in transplantation and had accumulated experience in the unsupervised carrying out of successful transplants. Mr Hannon also confirmed that you would not have been appointed to this post if the information subsequently obtained by the Trust had been provided at the time of your appointment.
- The disciplinary authority concluded that you had misled the appointment panel. This is a matter of the utmost importance and seriousness. The Trust's primary responsibility is the safety and wellbeing of its patients. During the first 12 months of your appointment to the Belfast City Hospital, sufficient concerns were raised to justify your precautionary suspension and your referral to the GMC for consideration of your 'Fitness to Practise'. After its consideration of the evidence presented during the hearing, the panel decided that there is sufficient doubt to undermine the competence of the Trust that you were a suitably trained and experienced clinician capable of undertaking the range of duties attached to the post of Consultant Surgeon (Renal Failure and Transplantation).
- In the circumstances it has been decided that you should be summarily dismissed from your post with immediate effect and without payment in lieu of notice. Your P45 will be forwarded to you as soon as possible.
- Under the terms of the disciplinary procedure you have the right to appeal this decision by submitting the grounds of your appeal to the Director of Personnel within seven days of receipt of this letter.
Mr Brown accepted in evidence to the tribunal that the letter dated 20 October 2006 made reference, in the disciplinary authority's decision, to issues which had been referred to the General Medical Council, and in circumstances where it had been expressly decided the disciplinary hearing was not to determine those matters – when the letter had stated:-
"The disciplinary authority concluded that you had misled the appointment panel. This is a matter of the utmost importance and seriousness. The Trust's primary responsibility is the safety and well-being of its patients. During the first 12 months of your appointment to the Belfast City Hospital sufficient concerns were raised to justify your precautionary suspension and your referral to the GMC for consideration of your Fitness to Practise. After its consideration of the evidence presented during the hearing, the panel decided there is sufficient doubt to undermine the competence of the Trust that you were a suitably trained and experienced clinician capable of undertaking the range of duties attached to the post of Consultant Surgeon (Renal Failure and Transplantation)."
He further accepted, with hindsight, that such reference to the GMC issues should not have been included and it was a mistake for such reference to have been included in the letter setting out their decision. He also acknowledged that the phrase 'undermining the competence (which should have read 'confidence') of the Trust' had not been used either in the disciplinary hearing itself or in the documents sent to the claimant prior to the hearing and, in particular, the terms of reference – but said, which the tribunal accepts, this undermining of trust was the consequence of the disciplinary authority's conclusion the claimant had misled the interview panel and the dismissal had to follow. The tribunal further, in the circumstances, did not consider the said reference amounted to a 'new' charge, not previously raised, to be faced by the claimant.
The tribunal is satisfied, as acknowledged by Mr Brown, as set out above, that the disciplinary authority in its decision had referred to matters which were the subject-matter of the reference to the GMC Fitness to Practise Committee; albeit these were not to be the subject-matter of the decision by the disciplinary authority and indeed the exclusion of such matters had been the basis of its decision not to proceed with the disciplinary hearing in advance of any grievance hearing. However, although there was the said reference in the disciplinary authority's decision and it thereby had fallen into the very trap their decision, in relation to when the grievance hearing was to take place was meant to avoid, the tribunal was satisfied that the disciplinary authority's decision was taken in light of their conclusion the claimant had misled the interview panel which had appointed him to the said post; and not on the basis of any determination of the disciplinary authority of the matters which had been referred to the Trust.
Following the refusal of the adjournment, Mr Gormley ceased to represent the claimant, who continued to act at the appeal hearing on his own behalf. The claimant considered he was in a better position, as a Consultant Surgeon, to question the relevant witnesses, and therefore to conduct his own case. He asked that Mr Gormley should remain as an observer, which was refused, following objection by the Trust's representative, as contrary to the procedures, which allowed the claimant to be represented but not to provide for the attendance of an observer.
Indeed, the tribunal found it hard, in the circumstances, to accept he did not open Mr Barkley's e-mail at some stage over the weekend. In any event, the tribunal is satisfied the claimant certainly knew of the resumed date at some time on Monday 12 March 2007 by which time he had returned to London for another hearing involved the GMC. It is correct the e-mail did not state the precise location, which was to be notified to him; but the tribunal believes that the claimant at all time knew the date of the resumed hearing and has sought to use the absence of the precise location on the e-mail in an attempt to try to justify his non-attendance at the resumed hearing on 15 March 2007. The reference to location was clearly to the precise room at the Trust's premises where the hearing was to be held; and the claimant, although English is not his first language, could have been in no doubt that the appeal was resuming in Belfast at one of the Trust's premises. The claimant was in London for this other hearing at the beginning of the week; but despite knowing the date of the resumed hearing returned to Germany. The tribunal came to the conclusion this was a conscious decision on his part. Although it is correct the period of notice was short, he was fully aware that it would be. It was also notice of a resumed hearing; not notice of the appeal itself. The tribunal are not satisfied that, although the claimant had made plans to fly back to Germany after the hearing in London, he was not in a position, if he had wished to do so, to change his plans to go to Belfast for the appeal hearing. He decided not to do so. The tribunal accepts there was inconvenience and probably some cost involved in changing his travel plans; but there was nothing suggested to the tribunal which meant he had no option but to return to Germany, especially when he was already in London. The tribunal noted the claimant had no difficulty in affording the various flights to and from Germany. The tribunal considered if the claimant was serious about his wish to be at the appeal, the cost of the loss of the flight back to Germany, would not have prevented his attending the appeal. Before leaving London to return to Germany he made no attempt to contact Mr Barkley, either by phone or e-mail on his receipt of the e-mail (which as seen above he had certainly received by 12 March 2007), to see if the date could be altered; or if location really was an issue for him, to seek clarification of the precise location of the hearing. The claimant had time to write to Mr Barkley over the weekend and on 12 March 2007 post the letter in London. It is to be noted that he used, on the letter his Belfast address, where he suggested to the tribunal he was not living at that time and which house may have been sold or was in the process of being sold. Clearly to return to Germany, as he did, made it much more difficult to return in sufficient time to Belfast and/or to make the necessary travel arrangements. The tribunal found the claimant's evidence on these matters most unsatisfactory and concluded he could have been at the hearing, if he had wished to do so; but decided deliberately not to attend, so he could complain that the hearing had been continued in his absence.
The fact that it did, clearly was unsatisfactory; however, in the judgement of the tribunal, it arose because of the deliberate choice of the claimant.
"Mrs Hayes : So we don't know who checked out the issue of his finishing, completing his specialist training, we don't know who asked that question?
Dr Fullerton : Again I can speak in general terms although I cannot speak specifically about this interview, but it would be normal process, a consultant interview is a fairly structured process and it would be normal that the first person on the panel to speak other than introductions would be the external representative who is appointed by the Royal College. It is their responsibility to go through training and so on with the candidate.
Mrs Hayes : So the fact that his sheet is missing is quite key to …
Mr O'Reilly : It doesn't help.
Mrs Hayes : Because it would have been his job I expect then to ask those relevant questions in terms of appropriateness for the post.
…
It is apparent, from the foregoing, the members of the appeal panel did not consider or look at the documents prepared prior to the interview, referred to previously in Paragraph 2.4 of this decision, in which the areas of questioning of each member was set out. Professor Bradley's question area was 'Candidates training and experience'. Therefore the questions asked by Professor Bradley were the very questions which the appeal panel recognised were of particular relevance and importance.
Later in the hearing, Mrs Hayes again indicated that she wished to see the questions from the interview panel … "I think I would feel happier if I could see those and the other rating forms …"
As indicated previously, the appeal panel did not uphold the second charge/second term of reference relating to the charge he filed to attend a disciplinary hearing which had been convened at Harmyres Hospital on 30 September 2007. It concluded, as the appeal panel had not received any documentation to confirm the claimant had been requested to attend such a hearing, it would not uphold the decision by the disciplinary authority in relation to this charge.
In relation to the first charge/term of reference, the letter stated:-
"At the appeal hearing on 9 March 2007 Mr R J Hannon, Clinical Director of Surgery advised the panel you stated during the interview that you carried out 40 supervised and 10 unsupervised transplants. Mr Hannon indicated that this was significant as part of his assessment in considering you as a suitable candidate for this particular post of Transplant Surgeon at Belfast City Hospital.
The panel then considered evidence forwarded by you from the Freeman Hospital which is titled 'Log Book' and lists operations that you undertook either as operations with assistance and operations without assistance. This log does not equate to 40 supervised and 10 unsupervised transplants. The panel also considered a single page document which lists 77 dates of kidney transplants from your time at the South Thames Deanery. These dates do not provide the panel with sufficient assurance that operations were in fact carried out on these dates. Indeed a number of these dates are following the time that you were suspended from the South Thames Deanery. This was of particular concern to the panel. The panel also concluded that the Joint Committee and Higher Surgical Trainee Assessment Forms are not sufficient evidence that you performed supervised and non-supervised successful transplants.
…
The panel notes in your evidence a letter from Ms René Chang, Director of Transplantation at St George's Healthcare Trust, which indicated that you were suspended from St George's Hospital and reported to the GMC in November 2001. Mr Chang also stated that you had not completed your training in transplant surgery at the South Thames Deanery. The panel was most concerned that you have failed to inform the Selection Panel regarding this suspension in November 2001 and that you had not completed your training in transplant surgery. The Appeal Panel believe you misled the Appointment Panel for the appointment of the post of Transplant Surgeon. This is totally at variance with the Guidance of the GMC Good Medical Practice.
In summary, based on the evidence, the Appeal Panel has found that charges 1 and 3 (sic) have been proven against you. The Appeal Panel has therefore concluded that the initial decision imposing summary dismissal from your post should be upheld."
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) The reason falls within this paragraph if it –
(a) relates to the capability or qualification of the employee for performing work of a kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.
(3) In Paragraph (2)(a) –
(a) 'Capability', in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and
(b) 'Qualifications', in relation to an employee, means any degree, diploma or other academic, technical or professional qualifications relevant to the position which he held.
(4) Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) –
(a) depends on whether in the circumstances (including the size and the administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
"In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair, the employment tribunal has to decide whether the employer who discharged the employee on the ground of a misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This involves three elements. First, there must be established by the employer the fact of that belief; but the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief and that the employer at the stage of which it formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case."
The tribunal in considering this matter at all times was conscious that it must not substitute its own view, but rather consider the reasonableness of the actions of the respondent and whether, in particular, the actions of the respondent, as the claimant's employer, fell within the band of reasonable responses which an employer might have adopted. The tribunal also noted that the said band of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason (see Iceland Frozen Foods Limited v Jones [1982] IRLR 439 and Sainsburys Supermarkets Limited v Hit [2003] IRLR 23).
The Court of Appeal held:-
"An employee should only be found guilty of the offence with which he is being charged. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed and that the evidence should be confined to the particulars given in the charge. Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. Where care has clearly been taken to frame a charge formally and put it to an employee the normal result must be that it is only matters charged which can form the basis for a dismissal."
"(i) the tribunal must take a broad common sense view of this situation;.
(ii) that broad approach should not necessarily be confined to a particular moment, not even the moment when the employment is terminated;
(iii) what has to be looked for in such a broad approach over a period was conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and
(iv) the employee's culpability or unreasonable conduct must contribute to or played a part in the dismissal."
It is the employee's conduct only that is relevant and not that of the employer (see Alders International Ltd v Parkins [1981] IRLR 68).
Under the standard DDP it is provided at Paragraphs 1 to 3 of Schedule 1 of the 2003 Order as follows:-
"Step 1 : Statement of grounds for action and invitation to meeting
1(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
1(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2 : Meeting
2(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
2(2) Meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under Paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had an reasonable opportunity to consider his response to that information.
2(3) The employee must take all reasonable steps to attend the meeting.
2(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3 : Appeal
3(1) If the employee does wish to appeal, he must inform the employer.
3(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
3(3) The employee must take all reasonable steps to attend the meeting.
3(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
3(5) After the appeal meeting, the employer must inform the employee of his final decision."
"Introductory
11. The following requirements apply to each of the procedures set out above (so far as applicable).
Timetable
12. Each step and action under the procedure must be taken without unreasonable delay.
Meetings
13(1) Timing and location of meetings must be reasonable.
13(2) Meetings must be conducted in a manner that enables both employer and employee to explain their cases.
13(3) In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the most senior manager attended that meeting)."
Under Regulation 12 of the 2004 Regulations it is provided, in essence, the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-
"12(1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part III of Schedule 1, … the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure.
… ."
Under Regulation 13 of the 2004 Regulations it is provided:-
"(1) …, if it is not reasonably practicable for –
(a) the employee, or, if he is exercising his right under Article 12 of the Order of 1999 (right to be accompanied), his companion; or
(b) the employer, to attend a meeting organised in accordance with the applicable statutory procedure for a reason which was not foreseeable when the meeting was arranged, the employee, or as the case may be, the employer shall not be treated as having failed to comply with that requirement of the procedure.
(2) In the circumstances set out in Paragraph (1), an employer shall continue to be under the duty in the applicable statutory procedure to invite the employee to attend a meeting and, where the employee is exercising his rights under Article 12 of the Order of 1999 and the employee proposes an alternative time under Paragraph (4) of that Article, the employer shall be under a duty to invite the employee to attend a meeting at that time.
(3) The duty to invite the employee to attend a meeting referred to in Paragraph (2) shall cease if the employer has invited the employee to attend two meetings and Paragraph (1) applied in relation to each of them.
(4) Where the duty in Paragraph (2) has ceased as a result of Paragraph (3), the party shall be treated as having complied with the applicable statutory procedure.
"(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if –
(a) one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedures is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to Paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
… ."
In Metrobus Ltd v Cook [UKEAT/0490/06], the EAT did not interfere with an uplift of 40% where the employer had 'blatantly' failed to comply with the obligation to send a Step 1 letter and acknowledged that the uplift provisions were 'more penal than compensatory in nature'. In the case of Davies v Farnborough College of Technology [2008] IRLR 4, Burton J suggested a maximum uplift would apply where there had been a 'complete and deliberate breach of any procedures'.
Ultimately, in summary, the extent of any uplift would appear to be a matter within the discretion of a tribunal, having regard to all material circumstances, which are 'unlimited'. Further the statutory provisions do not require the tribunal to start at an uplift of 50% and work downwards in accordance with evidence of mitigation provided by the respondent. (See Butler v G R Carr (Essex) Ltd [UKEAT/0128/07].) However, in the case of Aptuit (Edinburgh) v Kennedy [UKEATS 0057/06], the Employment Appeal Tribunal (in Scotland) held that in exercising its discretion to uplift an aware, the only circumstances which the tribunal may take into account are those surrounding the failure to complete the statutory procedure. Whether the employer had treated the employee in a shoddy manner/ lack of consultation/employer's size and administrative resources are all irrelevant considerations. In the case of McKindless Group v McLaughlin [2008] IRLR 678 the Employment Appeal Tribunal (in Scotland) has again confirmed that in exercising the discretion the tribunal must do so by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the employer should be penalised further. Somewhat controversially the EAT held that an uplift should not follow if the employer does not explain the reasons for the failure to comply on the grounds the statutory provisions do not oblige the employer to explain the failure.
In the case of Alexander and Hatherley v Brigden Enterprises Ltd [2006] IRLR 422, the EAT made it clear the Step 1 statement should "do no more than state the issue in broad terms … the employee needs to be told that he is at risk of dismissal".
In conduct cases the Step 1 statement will read to "identify the nature of the misconduct in issue, such as fighting, insubordination or dishonesty"; in other cases, "it may only require no more than stating, for example, it is a lack of capability or redundancy". The EAT emphasised that the approach of the tribunal should be consistent with that adopted in Canary Wharf Management Ltd v Edebi [2006] IRLR 416:-
"The purpose of these procedures is to ensure that there is a proper and fair opportunity for the parties to seek to address any disciplinary issues and other matters which may lead to dismissal … It is not to create unnecessary technical hurdles for either employer or employee. … Shifts in the form of the case will not lead to an obligation on the employer to write a fresh (Step 1 letter) on each occasion."
This approach was followed by the Employment Appeal Tribunal in the case of YMCA Training v Stewart [2007] IRLR 185, where reference was made to a statement in 'headline terms'. In the case of Draper v Mears Ltd [2006] IRLR 869, the tribunal in considering whether a letter complied with Step 1, the tribunal was entitled to look at the whole context in which it was issued.
In the case of Homeserve Emergency Services v Dixon [UKEAT/0127/07] the EAT held that although the Step 1 letter complied with Step 1, even where it did not expressly state it was contemplating dismissal; and that it was 'implicit' from a letter 'inviting the employee to a formal disciplinary meeting for breach of contractual dismissal. The threat of such action must be implicit'.
However, where a quite distinct act of misconduct emerges as part of the investigatory or disciplinary process or new information emerges during the process, which materially changes the basis on which the employer is proceeding, the Employment Appeal Tribunal, has made clear a fresh Step 1 letter is required. (See Premier Foods PLC v Garner [UKEAT/0630/05] where reference was made to 'shifts in the focus of a case will not lead to an obligation to write fresh missives on each occasion'.)
4.13 The specific provisions relating to Step 2 meetings are referred to above.
The Employment Appeal Tribunal in Alexander considered the nature of the information the employer must give to the employee in order to inform him of the 'basis' for the concerns in the Step 1 statement. It noted the following matters (Paragraphs 39 – 41 of the judgment) in particular. Firstly, to comply with Step 2 of the DDP, the information does not need to be in writing and can be given orally. The information is 'an explanation … as to why the employer is contemplating dismissing that particular employee'. In misconduct cases, however, the Employment Appeal Tribunal held the information required involves putting the case against the employee in 'sufficient detail to enable the employee properly to put forward his side of the story'. In the case of Ingram v Bristol Street Parts [UKEAT/0601/01], Elias J held it was sufficient if the 'basis of the allegation had been provided, even if some evidence was given during the disciplinary hearing. In the case of Davies v Farnborough College of Technology, also like Alexander a redundancy case, Burton J referred to giving sufficient information to allow the employee both to understand and to challenge why he rather than others, has been selected for redundancy having regard to the stated criteria for such redundancy.
A Step 2 requirement can be complied with before a Step 1 requirement and the said steps do not require to be taken sequentially. In YMCA Training v Stewart the EAT confirmed that the greater level of detail required prior to the Step 2 meeting can be part of a more detailed Step 1 letter.
However, a failure to comply with the requirement to give sufficient information to comply with Step 2 cannot be cured by giving the employee the 'missing' information prior to and/or at the Step 3 appeal. (See Davies v Farnborough College of Technology [UKEAT/0137/07] – Paragraph 19 of the judgment.)
"25. … In my judgment, the section distinguishes between 3 things: the applicable procedure, the completion of the procedure and compliance with the requirements of the procedure. The question whether the procedure applies obviously has to be addressed before the question whether the procedure has been completed. If the procedure does not apply in relation to the dismissal, the question whether it has been completed must be addressed before the question of non-compliance with the general requirement of the procedure. If the procedure has been completed, the question whether there has been non-compliance with the general requirements of the procedure never arises.
26. Completion of the procedure is not made expressly or impliedly conditional on, or subject to, compliance with the general requirements. All the prescribed steps in the applicable procedure may be completed, even if there has been non-compliance with other procedural requirements, such as the timetabling standards!"
As Lord Justice Burton stated at Paragraph 50 of the judgement:-
"50. Ordinary language distinguishes between the failure to complete a procedure and a failure, for example, to carry it out in a reasonable time. Clear words would be required to equate a failure to complete with completion of a procedure in a non-compliant way. Far from continuing such words, the statutory provisions express and confirm the distinction. Section 98A of the 1996 Act [Article 130A of the 1996 Order] distinguishes between an applicable procedure not having been completed (the subject of Section (1)(b)) and failure by an employer to comply with the requirements of a procedure (the subject of Sub-Section (1)(c)). Sub-Section (1)(c) would be otiose if failure to comply with the requirements of a procedure were synonymous with a failure to complete it … ."
However, what is clear from the authorities that Article 130A(2) is only of assistance to an employer whenever the DDP has been complied with. "Automatic unfairness cannot be cured by invoking [Article 130A(2)] (Butt v CAFCASS [EAT/0362/07]. Thus where there has been a breach of DDP, the normal Polkey principles, which applied before Article 130A(2) apply.
Where an employer is able to rely on Article 130A(2) it can only do so if it shows it would have decided to dismiss the employee if it followed the procedure. The burden of proof is on the employer and 'mere assertion' by the employer is not sufficient. (See McCall v Northern Rail Ltd [EAT/0504/06].) Thus an employer, if it is able to show that the employer would have been dismissed even if fair procedures had been adopted, then the dismissal will be held to be fair. However, if the tribunal finds that there would have been the chance of such a dismissal, but falling short of 50 per cent, then the tribunal has to find the dismissal unfair and reduce the compensation in accordance with Polkey (see Kelly Madden v Manor Surgery [2007] IRLR 17) and Harvey on Industrial Relations and Employment Law, Volume 1, D1 2809.
There was no doubt that the Trust had not complied with the timetable contained in the Trust's procedures for the conduct of the appeal; and the tribunal therefore had some concern there had been a breach of the general requirements set out in Part II of Schedule 1 of the 2003 Order, in particular the requirement under Paragraph 12:-
"Each step and action under the procedure must be taken without reasonable delay."
The decision of the disciplinary authority was given on 20 October 0206 and the appeal did not take place until 9 March 2007; although the timescale for the appeal, under the terms of the disciplinary procedure of the Trust, stated:-
"It should take place within 20 days of receipt of the appeal."
However this is not mandatory, and much will depend on the particular circumstances in each case. In this case there required to be the grievance hearing before the appeal could take place. Even if the grievance hearing had been heard before the disciplinary hearing, as the tribunal considered should have taken place, the disciplinary hearing would still have had to be heard as the grievance was properly rejected. The tribunal does not consider the date for the appeal would have been very different. Although the appeal hearing did not commence until 9 March 2007, it is correct to note it would have commenced on 23 February 2007, but the claimant sought and was granted an adjournment. The tribunal concluded that, given the 20 day period referred to in the procedures, it should have been arranged within a short period after the grievance hearing and well before the proposed initial date of 23 February 2007. Given the fact the Trust was to replace the Belfast Health & Social Services Trust on 1 April 2007 the necessity to arrange an early date for the appeal was even more important. In the circumstances, the tribunal did consider the Trust failed to arrange the appeal in compliance with the said general requirement under the 2003 Order.
However, in view of the recent decision in Selvarajan v Wilmot [2008] (see Paragraph 4.14 of the decision), the tribunal concluded the said 'unreasonable delay' did not make the dismissal automatically unfair as the statutory procedure had been 'completed'.
Having had regard to the authorities referred to in Paragraph 4.12 of this decision, the tribunal concluded the Trust had stated the issues in "broad/headline terms". As indicated previously, the tribunal was satisfied that, although dismissal was not expressly referred to, it was implicit in the terms of the said terms of reference and the provision of the disciplinary procedure with the correspondence.
Further, the tribunal was satisfied that, by the said correspondence, the Trust had satisfied Step 2 of the statutory procedure and had also set out in sufficient detail the basis for the concerns in the Step 1 statement – and the claimant had been given the explanation why the Trust was contemplating dismissing the claimant (see further Alexander and Hathereley v Brigden Enterprises Ltd [2006] IRLR 422 and the cases referred to in Paragraph 4.13 of this decision). The tribunal was confirmed in the view that the claimant knew the matters, the subject-matter of the disciplinary hearing, when the claimant's letter of 27 September 2006 to the Trust (Paragraph 2.30 of the decision) is considered, where he set out, in some considerable detail his response to the charges of misleading the Trust at the interview for the said post.
(1) At a selection panel on 13 Mary 2006, you indicated [tribunal's emphasis] that you had a personal record of 40 supervised and 10 unsupervised successful transplants. You later confirmed to the Director that this was the case. However you have failed to provide evidence to substantiate the claim. This evidence must be made available to the disciplinary authority at the forthcoming hearing.
…
(2) It is alleged that you misled the selection panel at the time of your appointment when asked [tribunal's emphasis] about the successful completion of your training in transplant surgery at the South Thames Deanery. This is a most serious allegation amounting to gross misconduct. You will be required to produce evidence at the disciplinary hearing to prove that you did successfully complete the training, as you would not otherwise have been appointed to your current post.
Mr Hannon's rating form merely stated '40 assisted 10 solo'. The tribunal has accepted some reference was made, in some way by the claimant, during the course of the interview, to the carrying out of 40 assisted procedures and to the carrying out of 10 solo/unassisted procedures. However, in the absence of any evidence from Mr Hannon or any other member of the panel as to the precise questions/answers given/context and/or circumstances in which any question was asked or answer was given, which resulted in Mr Hannon's note, the tribunal did not consider the Trust had established the necessary belief, after carrying out a reasonable investigation, that the claimant had so misled the interview panel. Neither the disciplinary authority or the appeal panel looked at any other rating form, other than Mr Hannon. Neither sought to find out what precise questions had been asked of the claimant in this context. Indeed, Mr Hannon could not have done so, as he accepted in evidence to the tribunal. The members of the appeal panel, as seen in the stenographer's note, fully recognised the significance and relevant of ascertaining the questions asked. Mr Hannon was the only member of the interview panel to note these figures on their rating forms. Indeed, neither body saw the rating forms of the other members of the panel. The appeal panel, having recognised their importance in their investigation of this matter, did not pursue the matter. At the very least, at that time, the rating forms of all the other members were available. In respect of Professor Bradley, the expert, his rating form was said at the time to be mislaid. No attempt was made to find out; any more and/or to see if it could be found; but the tribunal noted that, without explanation, it was able to be produced at the hearing before the tribunal. If one accepts it was not available at the time, and despite further enquiry it would have remained so, no attempt was ever made to ask Professor Bradley, what he recalled the claimant had said on this matter, and in answer to what questions and in what context. An employer, applying the range of reasonable responses test, in the judgment of the tribunal, would not have failed to make these further enquiries. The tribunal believed such enquiries would not have been difficult to have been carried out. There was no suggestion Professor Bradley or indeed any of the other panel members could not have been contacted. These were enquiries which an employer carrying out a reasonable investigation should have done. It also has to be recalled, in this context, that the relevant criteria for the job was 'broad general experience in renal failure/ transplant surgery. It did not ask for a specific level of experience. The tribunal finds the failure to carry out these further enquiries/investigation is very significant when the rating forms are examined. In contrast to what Mr Hannon has noted, Professor Bradley found the claimant had 'limited experience in paediatric and living donor kidney transplantation – may need supervising in some aspects' – assessed as C+, and referred to the claimant's admitted limited experience; Professor Maxwell referred to 'limited involvement in living donor procedures as lead surgeon'. Whatever were the questions asked and answers given by the claimant, in the tribunal's judgment, the rating forms, as referred to above, showed that, rather than misleading the interview panel, the panel had clearly noted his limited experience/ limited involvement as lead surgeon/limited independent experience In the tribunal's view this information could have been obtained and finds it difficult to understand, where the charge related to the interview itself, why no proper enquiry/investigation was made of the members of that panel. This view of the other members of the panel, who clearly had more expertise/knowledge of this particular field, has to be contrasted with the evidence given to the disciplinary authority and/or the appeal panel by Mr Hannon, as set out in the minutes of the meeting and relied upon in their respective decisions. In contrast to what was stated by the 'experts' in their rating forms he said, in evidence to the disciplinary and appeal bodies, he believed the claimant had misled the panel into thinking he had, in terms, achieved a level of experience, in unsupervised transplants, which he considered significant. As seen above, the 'experts', in contrast to the non-expert, Mr Hannon, seemed to have been, rather than misled, very aware of the claimant's limitations. Despite knowing these limitations, and having regard to the required criteria, the panel appointed the claimant.
The charge refers to the claimant having indicated he had a personal record of the said procedures and that he subsequently confirmed this to Mr Barkley. This clearly is a reference to what Mr Barkley had said to Dr Fullerton about the existence of a record document prepared by the claimant containing details of procedures carried out by him. The tribunal, as set out previously, does not accept Mr Barkley's recollection of the conversation with the claimant is correct. Mr Hannon did not give evidence, when making the reference to procedures he had noted in his rating form, that the claimant had said he had a completed actual written record, as the charge suggests. As stated previously, Mr Hannon did not know how the answer which he had noted had come to be given; and so was of no assistance in relation to whether or not the claimant had referred to such an actual record. This again illustrates the difficulty of the wording of the charge, upon which the tribunal was ultimately dismissed.
In the circumstances, the tribunal was not satisfied the claimant, as set out in the first charge had misled the interview panel.
Again, the tribunal, in the judgment of the tribunal, having regard to the specific nature of the charge, concluded the Trust had not shown it had the necessary belief, after a reasonable investigation, that the claimant had misled the interview panel.
The tribunal, as set out previously, concluded the disciplinary authority should not have proceeded with the hearing, in the face of the claimant's self-certifying medical certificate and should have adjourned the hearing to clarify the situation. If he had done so, the certificate from the doctor would have been received. The claimant should have been given the opportunity to attend the disciplinary hearing, which he was prevented from doing. To proceed, for the reasons, as set out in Paragraph 2.38 of this decision, did not, in the tribunal's judgment, come within the band of reasonable responses.
However the claimant's much greater contribution to his dismissal arose out of the manner in which he set out his application form/CV, and did not provide the information he should have done; and which indeed the Trust on the application form had requested. The tribunal believes that, regardless of any particular guidance in relation to application forms and their contents in the Health Service, all persons should always fill forms in as fully and accurately as possible. In this case, the claimant had been asked to tell the Trust the reasons for leaving his previous employment. Such a standard request for information is essential so an employer can consider the suitability of a person for a post – a person about whom very little may be known. It assists them, in light of the criteria for the post, to test at interview the person's suitability for that post. In the health field this has added importance, in view of the potential consequences for patients if an unsuitable person is appointed. The claimant failed to answer the request and merely set out, in his CV the list of posts and dates. The tribunal believes this was deliberate, and was done in the hope no relevant question would be asked, as the tribunal has found was not done, about his reason for leaving Mr Chang's hospital. He clearly wanted to hide from the interview panel the fact he had been suspended and referred to the GMC. He realised an answer giving the reason for his leaving would have been likely to have led to the interview panel asking certain relevant questions about the suspension and referral, in order to properly assess his suitability for the post. The tribunal can understand the claimant would have contended, as he did before the tribunal, that he was subsequently exonerated and it would have had no bearing on his suitability. Indeed, the interview panel might have accepted this explanation and still appointed him. But he did not provide, as the application asked him to do, the proper and full reason why he left. If he had, it would then have been for the Trust to decide, in light of the information given, whether to appoint him. Undoubtedly, if he had, many of the matters, the subject-matter of the charges would have arisen and would have been dealt with at the interview.
The claimant's deliberate omission in the manner in which he completed his application, in the tribunal's view, contributed significantly to his dismissal, which the tribunal concluded should be assessed at the figure of 50%.
The tribunal, in considering whether to exercise its discretion to make any such Order took into account that the claimant himself, in evidence to the tribunal, acknowledged that by reason of what had happened to him in relation to his dismissal, and the actions of the Trust in relation thereto, he had lost trust in the respondent. It was equally clear to the tribunal, having regard to the evidence of the witnesses from the Trust, that the respondent and many of its medical staff also had lost trust in the claimant (see further Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680). In addition if the claimant was to be the subject of an Order for Reinstatement and/or Re-engagement, he would require a period of re-training together with supervision. The tribunal was also very aware that the GMC 'Fitness to Practise' procedures/hearings continue, which at the time of the tribunal hearing precluded the claimant taking up any Consultant's post. This was probably going to continue until the GMC took a final decision, which was unlikely to be before mid-2009. In addition, the tribunal recognised that, ultimately, the GMC could take a decision the claimant was not fit to practise and, in such circumstances, thereby negate the effect of any such Order made by the tribunal. The tribunal also accepted that there had been a small turnover of relevant medical staff in the Trust since serious concerns had been raised by medical staff and which subsequently became the focus of the GMC investigation. Thus, the claimant would be required to return to work with those members of staff, who had already raised serious concerns about the claimant's work. In the tribunal's view, given the nature of those serious concerns, the tribunal came to the conclusion that it would be difficult, if not impossible, for a proper working relationship to be established between the claimant and those members of staff. In addition to those members of staff who raised concerns, it was self-evident that those concerns would also be known by all those with whom the claimant would be required to work. In a busy hospital situation, the tribunal concluded that, in the above circumstances, it was not practicable for the Trust to comply with any such Order. The tribunal could not ignore the necessity for good working relationships to exist amongst staff, where their actions, often in stressful situations, had consequences and implications for the health and treatment of patients. The tribunal therefore concluded it was not practicable for the Trust to comply with such an Order; and refused his application for an Order for Reinstatement and/or Re-engagement.
The tribunal was made aware that, following a period of engagement of a locum by the Trust on a temporary basis following the claimant's dismissal, the Trust had appointed a replacement consultant on a permanent basis with effect from in or about 1 August 2008. In deciding not to exercise its discretion to make such an Order, the tribunal did not take into account the fact of the appointment of this permanent replacement. In addition, having regard to the tribunal's conclusions that the claimant had contributed to his dismissal, this further confirmed the tribunal's conclusion that such an Order was not appropriate in the circumstances.
In the absence of any other evidence and/or specific dispute or challenge to the make-up of the figures by the respondent, the tribunal did not further consider the detail of the said figure, set out in the report, and has allowed same, save as set out above.
(i) Basic award
3 x £290.00 (taking into account the statutory cap) -
£870.00 - less 50% for contributory conduct
Total : £ 435.00
(ii) Compensatory award
(a) Loss of statutory rights £ 200.00
(b) Loss of earnings from
21 October 2006 to 30 September 2009 –
(i) Basic/overtime/pension £167,909.26
(ii) On-call supplement £ 9,348.86
(iii) On-call bonus £ 46,744.43
(iv) Private work £ 7,567.00
£231,769.55
Less 50% for contributory conduct Total £115,855.00
However applying the statutory cap
the compensatory award is limited to £ 58,400.00
Total award (1) and (2) £ 58,835.00
Chairman:
Date and place of hearing: 2 – 6 June 2008; and
9 – 13 June 2008, Belfast
Date decision recorded in register and issued to parties: