Employment Law
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Help with NHS and other Employer Disciplinary Procedures
A Court of Appeal ruling against an NHS trust illustrates the complexity and legal implications, of public sector disciplinary procedures, and should act as a warning to employers to tread carefully.
It was the second time that the claimant in Mezey v South West London Mental Health NHS Trust went to the Court of Appeal to challenge the way in which her employer was conducting disciplinary proceedings against her. And for the second time she was successful in obtaining an injunction
Dr Mezey was employed by the trust as a consultant forensic psychiatrist and also undertook academic duties at its medical school. In September 2004, one of her patients absconded from a medium-secure mental health unit, having been granted unescorted leave to a hospital garden area. The following day he attacked and killed a stranger in Richmond Park.
Following two internal inquiries conducted by the trust into Dr Mezey’s role in this matter, the trust decided to proceed to a formal disciplinary hearing.
The patient was convicted of manslaughter, following which a further inquiry was commissioned in accordance with Department of Health guidelines. This third report was delivered in October 2006. The trust then suspended Dr Mezey from all her duties, including her academic duties. Dr Mezey obtained an injunction restraining the trust from suspending her, having given a voluntary undertaking not to carry out clinical duties pending a further investigation that was due to be carried out by a panel.
No serious fault
The report was supportive of many aspects of Dr Mezey’s treatment of her patient. It found her to be a highly experienced, conscientious and distinguished clinician and academic who was widely regarded as an asset to her profession. However, it also found that the decision to allow the patient unescorted leave was inappropriate, even though it was satisfied that other competent consultants at the time might have made the same decision. It was clear that this did not amount to serious professional incompetence. It concluded that no serious fault had been proven.
Despite this, the trust attempted to set up a formal disciplinary hearing to consider whether or not any disciplinary action should be taken against Dr Mezey, up to and including dismissal. This led Dr Mezey to commence further proceedings against the trust to prevent it from holding a disciplinary hearing and from continuing to exclude her from clinical work.
This caused the trust to reconsider its position. It agreed to lift Dr Mezey’s exclusion from clinical work. Further, it indicated that dismissal would be excluded from the potential outcomes, meaning they would be restricted to various warnings and reprimands. However, its stance remained that it wished to convene a disciplinary hearing to consider the report and the possibility of a warning or reprimand.
The Court of Appeal, found that in the relevant circumstances there was simply no basis for the trust to continue its disciplinary procedure and hold a disciplinary hearing.
Complex procedures
This is a reminder of the complexity of the contractual disciplinary procedures that apply to employment in many parts of the public sector, not only the NHS, and the potential legal consequences if they are not followed properly. In light of failures by the trust to follow the applicable contractual procedures, Dr Mezey was twice successful in obtaining an injunction relief from the Court of Appeal: first in relation to her suspension, and second in relation to the continuation of internal disciplinary proceedings.
This case, like recent cases examining if and when employees are entitled to legal representation in disciplinary proceedings, illustrates how careful public sector employers need to be in disciplinary cases.
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We can help – Consult the experts – Call us on 020 7381 8111 or email law@rhplaw.co.uk and see how we can help you defend your case concerning the General Medical Council laws.
How to discipline a ‘sick’ employee?
An employee is under a disciplinary sanction but has since been signed off sick. You suspect he is ‘swinging the led’, or having a ‘helpful’ doctor.
Generally, when disciplining a sick employee, you should be prepared to postpone any meeting for a reasonable period. If the employee remains absent, you should try to obtain medical advice about whether the employee is well enough to attend a meeting and, if not, when they are likely to be. You can then decide whether the matter can wait.
But you should ensure that the matter is not allowed to drag on if the return date is constantly being extended. You should consider conducting the disciplinary hearing in another way, such as by telephone, at the employee’s home or closer to it, or by written submissions.
In the end, you might need to hold the disciplinary hearing in the employee’s absence and make a decision on the basis of all the evidence available.
Consult the employment experts – Call us on 020 7381 8111 or email law@rhplaw.co.uk
