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 EWCA Civ 641, IRLR 661 , Court of Appeal - John Hendy QC, Giles Powell, Nicola Newbegin
An NHS trust's disciplinary decision to dismiss an employee under his contract of employment did not determine any civil right of his within the meaning of the European Convention on Human Rights 1950 art.6.
The appellant consultant cardiologist (M) appealed against the dismissal of his claim ( EWHC 2068 (QB)) that his dismissal by the respondent NHS trust was ineffective.
M was employed by the trust as a consultant and his job description included a requirement for research. In 2002 M was suspended from his post with the trust on disciplinary grounds. It was apparent that he would require re-skilling in order to return to his duties. M argued that his re-skilling should include academic re-skilling connected to research, as well as clinical re-skilling. The trust disagreed. M's conduct was investigated and allegations against him included that he had repeatedly refused to cooperate with the re-skilling process and had rendered himself unmanageable. M's subsequent disciplinary hearing was postponed on six occasions at M's request. The trust's chief executive who chaired the hearing refused a request by M for a seventh postponement and the hearing took place without M. The trust's disciplinary procedure stated that, where a case involved issues of professional conduct, the panel had to include a medically qualified member. M's panel did not include such a member on the basis that it was a matter of non-clinical conduct. It found that M had been guilty of gross misconduct and he should be dismissed. His appeal against that decision was dismissed.
M submitted that (1) the allegation against him raised issues as to his professional conduct so that a medically qualified member should have been on the panel; (2) the trust was in breach of its implied obligation of fairness by not adjourning the misconduct hearing; (3) the process by which he was dismissed and his appeal from it constituted a determination by the trust of a civil right within the European Convention on Human Rights 1950 art.6 and therefore should have complied with the requirements of that article.
HELD: (1) (Sir Stephen Sedley dissenting) The allegation against M concerned a refusal by him to return to clinical work until the trust agreed to his academic re-skilling. Therefore the primary issue was whether the requirement that he return to work without academic re-skilling was one the trust was reasonably entitled to make under its contract with M. That issue did not involve any medical skill or expertise for its resolution; it was an employment issue, as was the issue of whether he was unmanageable (see para.31 of judgment). (2) On the evidence available to the panel, the trust's obligation of fairness did not require a seventh adjournment in circumstances where it was appropriate for the proceedings to be determined expeditiously (para.40). (3) The issue was whether a decision by an employer to dismiss an employee under a contract of employment determined a civil right of the employee within the meaning of art.6. The trust's decision to dismiss M did not affect his right to practise his profession. He could lawfully do so either in private practice or as an employee of another NHS trust or private hospital. He was not rendered unemployable. Therefore his civil right, lawfully to practise his profession, was not engaged. The obiter remarks of Smith LJ in Kulkarni v Milton Keynes Hospital NHS Trust  EWCA Civ 789,  I.C.R. 101 did not represent the law, Kulkarni considered. R. (on the application of G) v X School Governors  UKSC 30,  1 A.C. 167 confirmed that the trust's disciplinary decision to dismiss M under his contract of employment did not determine any civil right of his, R(G) followed. The disciplinary proceedings of the trust, and the decision summarily to dismiss him, might give rise to a civil right, namely the rights within the jurisdiction of an employment tribunal and which might be decided by it, but they did not determine any such right. Accordingly the disciplinary proceedings of the trust did not engage art.6. His dismissal was the exercise of a contractual right, not the determination of a civil right within the meaning of art.6. It was the determination of the claimed right to redress for alleged breach of the contractual right that engaged art.6 (paras 49, 52, 61, 65, 67, 76, 97).