Dr Kevin Beatt v Croydon Health Services NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lady Justice King,Sir Terence Etherton, MR |
| Judgment Date | 23 May 2017 |
| Neutral Citation | [2017] EWCA Civ 401 |
| Docket Number | Case No: A2/2016/0534 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2017 |
[2017] EWCA Civ 401
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PETER CLARK
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Terence Etherton, MR
Lord Justice Underhill
and
Lady Justice King
Case No: A2/2016/0534
Mr Daniel Stilitz QC and Ms Harini Iyengar (instructed by Linklaters LLP) for the Appellant
Ms Jane McNeill QC and Mr Ian Scott (instructed by Capsticks Solicitors LLP) for the Respondent
Hearing dates: 4 and 5 April 2017
Approved Judgment
INTRODUCTION
The Appellant is a consultant cardiologist. From September 2005 until his dismissal with effect from 14 September 2012 he was employed by the Respondent Trust at Croydon University Hospital. By a judgment sent to the parties on 24 October 2014 an employment tribunal chaired by EJ Sage held that he had been unfairly dismissed, and subjected to various detriments following his dismissal, contrary to the "whistleblower" provisions of the Employment Rights Act 1996. By a judgment promulgated on 19 January 2016 the Employment Appeal Tribunal (Judge Peter Clark sitting alone) allowed the Trust's appeal. This is an appeal against that decision.
The Appellant has been represented before us by Mr Daniel Stilitz QC, leading Ms Harini Iyengar, and the Trust by Ms Jane McNeill QC, leading Mr Ian Scott. The two juniors appeared in both tribunals below; and Ms McNeill also appeared in the EAT. Mr Stilitz and Ms Iyengar have been acting throughout on a pro bono basis, as have their instructing solicitors, Linklaters LLP.
THE FACTS
The ET made findings about the events leading up to the Appellant's dismissal, and its aftermath, in great detail. For the purposes of the appeal I can confine myself to a very summary outline.
The Appellant's speciality is interventional cardiology – that is, the treatment of heart conditions by angioplasty and similar interventions by catheterisation as opposed to open-heart surgery. The unit at the hospital where these procedures were carried out was known as "the Cath Lab".
The interventional cardiology service at Croydon was established in 2005 by the Appellant and another consultant. For a short time after October 2007 he was the only consultant in the unit, but two others – Dr Asif Qasim and Dr Lin Soo – were appointed at or around the beginning of 2008. The new team did not work well together. A review by the Royal College of Physicians in 2009 described the cardiology department as "dysfunctional". The Appellant had a period of sickness absence due to stress in October 2009. Although the Trust took steps to try to deal with the situation, including a formal mediation process in 2010, these did not improve personal relationships between the consultants. In particular, the Appellant and Dr Qasim did not get on at all. Each made allegations about the conduct of the other. These included complaints about the treatment of the nursing staff, and it appears that the staff were to some extent drawn into the conflict between the consultants. This situation persisted throughout 2010 and early 2011.
Some time in (I think) 2010 Dr Qasim took over from the Appellant as Director of Interventional Cardiology. In May 2011 a "Service Manager for Cardiology", Ms Wendy Riddle, was appointed on a one-year contract to assist him. She and the Appellant did not get on from the start.
The work in the Cath Lab was very specialised, and there were a small number of nurses who worked there regularly. The head nurse was Sister Lucy Jones, who had been recruited by the Appellant in the early days of the unit and was very highly esteemed by him. The Matron in charge of nursing in the Cardiology Department overall was Ms Sinead Lynch.
The sequence of events which led to the Appellant's dismissal began on 9 June 2011. Sister Jones was called to a meeting that morning concerning allegations by Ms Riddle and Matron Lynch that she had been rude and abusive towards them. The Appellant attended the meeting with her and took her part. During a break in the meeting he was called to the Cath Lab to take over a procedure. When the meeting resumed, in his absence, Sister Jones was suspended. In the meantime complications had developed in the procedure being conducted by the Appellant, and the patient, referred to by the ET as "GS", tragically died.
It was, and remains, the Appellant's strongly-held view that it was irresponsible of the Trust to suspend Sister Jones in the middle of a working day when she might be expected to have clinical responsibilities. He believed, though this is not accepted by the Trust, that her absence contributed to GS's death: as I understand it, this is on the basis that there had been a delay in obtaining a particular piece of equipment (a "snare") which if Sister Jones had been contactable she would have been able to find more readily. Also, and more generally, he believed that following her suspension it was questionable whether there were sufficient nursing staff with sufficient experience to ensure the safe performance of procedures in the Cath Lab; and that her suspension had had a deleterious effect on morale.
The Appellant expressed those views on a number of occasions during the following days and weeks. Several of those expressions of view constitute the "protected disclosures" which were the basis of the ET's findings. I can itemise them as follows, giving them their labels from the Tribunal proceedings:
(1) Disclosure 81. At a meeting on 10 June, i.e. the day after GS's death, the Appellant told senior Trust managers that the suspension of Sister Jones had directly contributed to that outcome; that it had been reckless; that it called into question whether the Cath Lab was a safe working environment; and that there should be no further procedures performed until there had been a de-briefing involving the nursing staff.
(2) Disclosure 9. In an email to Gavin Marsh, the Medical Director, dated 13 June 2011, the Appellant said that he had grave doubts about the morale of the nursing staff following the events of 9 June.
(3) Disclosure 10. On 2 July 2011 the Appellant wrote a report for the Coroner about GS's death. In the course of his account he referred to the delay in obtaining a snare.
(4) Disclosure 14. On 8 July 2011 the Appellant was contacted by a GP from a local commissioning group, Dr Fernandes, asking why procedures booked for the Cath Lab had been cancelled. He told him in outline what had happened on and after 9 June.
(5) Disclosure 11. On 14 July 2011 the Appellant wrote to Nick Hulme, the CEO of the Trust, complaining about Dr Qasim and escalating his previously expressed concerns about patient safety.
(6) Disclosure 13. On 28 July 2011 the Appellant met Mr Hulme and Mr Marsh, and raised concerns about patient safety as a result of the unavailability of sufficient specialist staff.
(7) Disclosure 15. On 3 August 2011 the Appellant met Ms Riddle, Matron Lynch and Mark Kemp, the Trust's Associate Director of Operations, and explained his views about the absence of sufficient specialist nursing staff.
In the meantime a Serious Untoward Incident ("SUI") investigation was conducted by Juliet Kenney, the Trust's Clinical Director for Cancer and Core Functions. Her report was completed in early July. As regards the impact of the suspension of Sister Jones, Ms Kenney concluded that the decision had been taken only after management had ascertained that staffing levels would be satisfactory and that her absence had not contributed to what went wrong on 9 June. It is right to say that the ET had some criticisms of the way Ms Kenney approached her task, but it is unnecessary for me to set them out here.
At the meeting on 3 August 2011 the Appellant declined to undertake his list of procedures for the following day because he believed that there would be inadequate nursing cover. He also said that he did not want Ms Riddle and Matron Lynch to be in the Cath Lab when he was working. He did not attend for work on 4 August.
The Trust operates a "Speak Up Policy" providing for the investigation of concerns raised by staff. In late July/early August 2011 an investigation was conducted into the Appellant's concerns, including his complaints about Ms Riddle, by the Trust's Director of Operations (Community Services), Sharon Jones. In her report, which was completed in mid-August, she concluded that his allegations were "entirely without merit and … gratuitous in nature"; that the Appellant had a strong personal antagonism to Ms Riddle which manifested itself in rude and bullying behaviour; and that he was trying to use the process to get Sister Jones reinstated. Again, the Tribunal was critical of aspects of Ms Jones's investigation but I need not give the details.
On 8 August 2011 the Appellant was suspended on the ground that he had made false accusations of poor patient safety and had made unfounded accusations against Ms Riddle. A disciplinary investigation was conducted by a senior Trust manager, Michael Hayward, who finally produced a report in May 2012. The fact that this process took no less than nine months is extremely regrettable (though alas such delays are far from uncommon in NHS disciplinary cases). However, Mr Hayward explained to the ET the problems which he faced, and it expressed no criticism of him in this regard; and since nothing turns on this point for our purposes I need say nothing further.
On the basis of Mr Hayward's report nine disciplinary allegations were formulated against the Appellant. To avoid confusion with other kinds of "allegation" which I shall have to mention, I will refer to them as "the charges". To anticipate, six of the charges were eventually found proved and were the...
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