Dr Serryth Colbert v Royal United Hospitals Bath NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Dan Squires |
| Judgment Date | 04 July 2023 |
| Neutral Citation | [2023] EWHC 1672 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2023-002507 |
[2023] EWHC 1672 (KB)
Dan Squires KC
(sitting as Deputy High Court Judge)
Case No: KB-2023-002507
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Welch (instructed by ARAG Plc) for the Applicant / Claimant
Nicola Newbegin (instructed by Bevan Brittan LLP) for the Respondent / Defendant
Hearing dates: 19 June 2023
Approved Judgment
This judgment was handed down remotely at 4pm on 4 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Dan Squires KC sitting as a Deputy High Court Judge:
Introduction
The Claimant, Dr Serryth Colbert, is a consultant in oral and maxillofacial surgery. He is employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant is currently the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.
By the time the proceedings came before me, there were two issues in dispute. The first is whether the Claimant has a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant, at present, is not proposing to call to give evidence. The second issue is whether the Claimant is entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claims that the way the Defendant has dealt with those two matters breaches express contractual obligations, contained in two documents. The documents are: (1) “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) published by the Department of Health and which the Claimant contends has been incorporated into his contract of employment with the Defendant; and (2) “Managing Conduct Policy” (“MCP”), the Defendant's policy for dealing with allegations of misconduct, which the Claimant also contends forms a part of his contract of employment. The claim raises narrow but potentially far-reaching issues of interpretation of the relevant contractual provisions.
I am grateful for the clear and helpful way counsel put the case before me and set out my conclusions below.
Factual background
The Claimant commenced work as a consultant in oral and maxillofacial surgery with the Defendant on 15 March 2015.
In December 2020 the Defendant commissioned an external review to examine the department in which the Claimant worked. The review was not targeted at the Claimant, but sought to examine conduct in the department generally. It was commissioned after allegations were raised of inappropriate workplace behaviour. These were made through the Defendant's whistleblowing policy, “Freedom to Speak Up”. The Defendant appointed an external reviewer, Simon Atkinson, to conduct the review.
Mr Atkinson completed his review and provided a report on 17 February 2021 (“the Atkinson Report”). The Report considered the behaviour of a number of individuals, including the Claimant, and made recommendations. One of the recommendations was that the Defendant formally investigate the Claimant for alleged bullying / inappropriate behaviour. As a result of the Atkinson Report, the Claimant was excluded from work from 8 March 2021 while further investigations were carried out.
The investigation which followed was specifically targeted at the Claimant. It was conducted, according to the Defendant, pursuant to the MHPS. In order to carry out the investigation, in March 2021 the Defendant commissioned an external report by Elizabeth Cunningham.
During the course of her investigation Ms Cunningham interviewed 21 witnesses, including the Claimant. Ms Cunningham submitted a report on September 2021 with a further report submitted in December 2021 (“the Cunningham Report”). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.
On 16 December 2021 a letter was sent to the Claimant. It set out the “Outcome of Formal Investigation”. It concluded that the Claimant had a case to answer in relation to a series of allegations, and that the matter would proceed to a disciplinary panel to consider allegations of “misconduct amounting to bullying / inappropriate behaviour”. The allegations included subjecting colleagues to bullying and intimidating behaviour; subverting and publicly dissenting from the authority of departmental and divisional leadership and Trust processes; undermining colleagues and being openly critical of their practice; and exhibiting coercive behaviours to manipulate others into supporting him.
The letter of 16 December 2021 enclosed a number of documents including the Cunningham Report and a redacted copy of the Atkinson Report. The Atkinson Report, as it examined conduct within the Claimant's department as a whole, included material related to other individuals. According to a witness statement of Jane Dudley, the Defendant's Deputy Director for People and Culture, the redactions were to remove material that was irrelevant to the disciplinary process against the Claimant. The Claimant was, according to Ms Dudley, provided with those “parts of the … Report (and notes of conversations that had been conducted with individuals as part of [Mr Atkinson's] review) that were relevant to the matter to be considered by the disciplinary panel [examining the Claimant's conduct]”.
The Claimant was at this stage represented by Mr Duffy, a solicitor at RadcliffesLeBrasseur, and by the British Medical Association. During the first half of 2022 Mr Duffy corresponded with the Defendant's solicitors, Bevan Brittan LLP. The parties explored whether some kind of agreement could be reached to resolve matters, but that proved unsuccessful, and on 5 August 2022 Mr Duffy wrote to Bevan Brittan indicating he was no longer acting in the case.
On 20 December 2022 the Defendant wrote to the Claimant inviting him to attend a disciplinary hearing on 25 and 26 January 2023. The letter stated that the hearing would be held in accordance with the Defendant's MCP. It noted that if the Claimant was found to have committed misconduct he could be issued with a warning, and if found to have committed gross misconduct he could be dismissed. The letter stated that the Defendant would be calling Ms Cunningham to give evidence and that she would present her report to the panel. It asked that, if the Claimant wished to call his own witnesses, their names should be provided by 13 January 2023. The letter identified the three members of the disciplinary panel, including its chair, who was the Defendant's Deputy Chief Executive and Director of Finance. The letter further stated that the Claimant had already received Ms Cunningham's investigation report and relevant appendices, which would be provided to the panel, and stated “should you require anything further please let me know as soon as possible. If there is anything further which you believe needs to be sent to you, we will send that as soon as possible.”
On 12 January 2023 a letter was sent to the Defendant by a barrister, Mr David Welch. It was sent from the “Doctors Defence Service” which described itself as an “independent legal defence service for medical doctors.” Mr Welch stated that he had now been instructed to represent the Claimant at the disciplinary hearing, in place of Mr Duffy, and that there was no reason why he should not be permitted to do so. Mr Welch referred to paragraph 7.13 of the Defendant's MCP, which I set out further below, which requires that the documents that “will be considered at the [disciplinary] hearing” should be “enclosed with the invitation letter” to the hearing. He stated that the invitation letter of 20 December 2022 had failed to enclose the documents which would be considered by the panel (as set out above, the 20 December 2022 letter had referred to material that the Claimant had already received, such as the Cunningham Report, rather than enclosing it again). Mr Welch's letter continued: “it is self-evident that an unredacted version of the report and appendices by Simon Atkinson must be disclosed. Copies of all the documents provided to witnesses before they were interviewed must also disclosed.” The letter further stated that the Claimant required that 11 named individuals, described as “management witnesses”, should be present so they could be questioned, and that the Claimant intended to call “around 30 additional witnesses subject to their availability.” The letter concluded: “it follows that the hearing [of 25 January 2023] needs to be rescheduled for a date at least 6 weeks in advance and the likely duration is 2 weeks at least”.
The Defendant acceded to the Claimant's request that the hearing scheduled for 25 January 2023 be postponed. The Defendant responded to the substance of Mr Welch's letter of 12 January 2023 on 27 February 2023. It declined to permit Mr Welch to attend the disciplinary hearing. As set out further below, that issue has now been resolved and I do not deal with it further. As to the “documents” the Claimant sought, the letter stated: “we confirm that you will be provided with a full list and bundle of documents in good time prior to the [rescheduled hearing].” The letter continued:
“[the Defendant] does not believe it is necessary or appropriate to provide an un-redacted version of...
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Employment Law Case Update ' July 2023
...Witnesses and disclosure of documents at disciplinary hearings In Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bat......