Raj Kumar Mattu v The University Hospitals of Coventry and Warwickshire Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Elias,Sir Stephen Sedley |
| Judgment Date | 18 May 2012 |
| Neutral Citation | [2012] EWCA Civ 641 |
| Docket Number | Case No: A2/2011/2256 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2012 |
[2012] EWCA Civ 641
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
TIMOTHY STRAKER QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Stanley Burnton
Lord Justice Elias
and
Sir Stephen Sedley
Case No: A2/2011/2256
John Hendy QC, Giles Powell, Nicola Newbegin (instructed by Ashfords LLP) for the Appellant
John Cavanagh QC and Jennifer Jones (instructed by Harrison Clark Solicitors) for the Respondent
Hearing dates: 26 th and 27 th March 2012
Introduction
This is the appeal of Dr Raj Kumar Mattu against the order dated 1 August 2011, of Mr Timothy Straker QC, sitting as a Deputy High Court Judge, dismissing his claim for a declaration that his dismissal by the Defendant on 30 November 2010 was ineffective and consequential injunctive relief and damages. The appeal raises an important and fundamental issue as to the application of Article 6 of the European Convention on Human Rights to disciplinary proceedings of public authority employers.
The contractual framework
The Trust's disciplinary proceedings were modelled on Maintaining High Professional Standards in the Modern NHS, a document issued by the Department of Health that replaced the earlier disciplinary procedures continued in circular HC(90)9, and which is universally referred to as "MHPS". Page 4 of MHPS set out the key changes from HC(90)9. So far as is relevant, they were:
"The distinction between personal and professional misconduct is abolished. Doctors and dentists employed in the NHS will be disciplined for misconduct under the same locally based procedures as any other staff member;
There is a single process for handling capability issues about the practitioners professional competence closely tied in with the work of the National Clinical Assessment Authority;
Health issues are routinely dealt with through the occupational health service;
The employing Trust is squarely responsible for the disciplining of its medical and dental staff – not outsiders;
There is scope bring in expert advice for panels considering capability issues;
The capability panel will be handled by an independent chair;
The same disciplinary procedures will apply to all doctors and dentists employed in the NHS"
All NHS bodies in England were required by direction of the Secretary of State under statute to implement the framework within their local procedures. It is not suggested that the Trust failed to do so or that its disciplinary procedures, set out in its "Procedure for Conduct and Capability Concerns in relation to Medical and Dental Staff" (the "Disciplinary Procedure") did not comply with MHPS.
It is now common ground that the Disciplinary Procedure was incorporated into Dr Mattu's contract of employment. Section 3 of so far as relevant, is as follows;
"3.2 Where the alleged misconduct being investigated relates to matters of professional nature, or where an investigation identifies issues of professional conduct, the Case Investigator must obtain appropriate independent professional advice. This independent advice may be obtained internally and externally as deemed appropriate. Where a case involving issues of professional conduct proceeds to a hearing under the employer's disciplinary procedure the panel must include a member appointed by the LNC who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is employed by the organisation.
3.4 The Trust's Disciplinary Procedure sets out acceptable standards of conduct and behaviour expected of all its employees. Breaches of these rules are considered to be 'misconduct' and examples are set out in the procedure. Examples of issues that should be investigated under the Trust's Capability Procedure are set out in paragraph 4.4 below.
3.6 Although it is for the Trust to decide upon the most appropriate way forward having consulted the NCAS, the practitioner may be use the Trust's grievance procedure if they consider that the case has been incorrectly classified."
Section 4 is entitled "Procedures for dealing with Issues of Capability". It included the following:
"4.1 There will be occasions where the Trust considers that there has been a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge or ability. These raise issues related to capability. Matters that should be described and dealt with as misconduct issues are covered in part 3 of this procedure.
4.5 It is inevitable that some cases will include conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than a one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. It is for the Trust to decide upon the most appropriate way forward having consulted the NCAS. The practitioner is also entitled to use the Trust's grievance procedure if they consider that the case has been incorrectly classified. Alternatively or in addition he or she may make representations to the Designated Board Member.
4.6 The procedures set out below are designed to cover issues where a doctor's or dentist's capability to practice is in question. Prior to instigating these procedures, the employer will consider the scope for resolving the issue through counselling or retraining and will take advice from the NCAS."
The facts
I can take the facts from the judgment below, the account in which has not been disputed.
By an agreement made in writing on 3 February 1998. Dr Raj Mattu, the Claimant, was employed by the Defendant, the University Hospitals of Coventry and Warwickshire NHS Trust ("the Trust"), as a consultant in non-invasive cardiology and general medicine.
Dr Mattu, having specialised in cardiology, was appointed to the consultant post in 1998. Dr Mattu's contract of employment was described by the judge at paragraphs 16 and follows of his judgment. He said that Dr Mattu's post was entitled consultant. He was accountable for managerial purposes to the Chief Executive. Clause 3 of the agreement provided for the commitment given by Dr Mattu. His base headquarters were the Walsgrave Hospital and the Coventry and Warwickshire Hospital. A session commitment was identified and duties assigned for the purpose of providing health services under the National Health Service Acts. These were, as agreed by Dr Mattu, clinical services. However, his job description included a requirement for research.
Dr Mattu entered into a separate agreement with Warwick University. It conferred an honorary post providing for research at Warwick University. Such an arrangement is commonplace in the National Health Service.
In 2002 Dr Mattu was suspended from his post on disciplinary grounds. However, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. As a result of those disciplinary proceedings, by a letter dated 15 April 2008 Dr Mattu was given a first warning to last for six months and backdated to 1 January 2008.
It was apparent by July 2007 that it would not be desirable for Dr Mattu immediately to return to clinical or professional duties. He required re-skilling, which has, as its purpose, enabling him to return to safe practice.
Accordingly, re-skilling was arranged for Dr Mattu. In August 2008 he began a re-skilling programme at the Imperial College Health Care NHS Trust and at Royal Brompton and Harefield Foundation NHS Trust. However, there was disagreement as to its scope. Dr Mattu thought that his re-skilling should include, in addition to clinical re-skilling, an additional six months academic re-skilling connected to research, with the possibility that such six months be spent in the United States of America. He refused to sign the Trust's action plan, which did not make provision for academic re-skilling.
On 15 July 2010, John Mockler, an HR consultant and former interim HR director of the Trust, produced a report on the allegations against Dr Mattu. His findings led to the disciplinary proceedings against Dr Mattu. It was Mr Mockler who presented the management case at the disciplinary hearing. Paragraphs 9.8 to 9.11 and 11.6 of his report were as follows:
"9.8 In February 2009 (24 February 2009) the parties set out their views in respect of the academic re-skilling. Mr Kennedy [the Trust's Medical Director] confirmed (pg 284) that he was:
"not prepared to sanction a further 6 months research training not sanctioning another six months in terms of academic training whether here or in the States or wherever, not a prerequisite to us getting you back here in to work this is a personal development after you return to work. Clinical re-skilling comes first get you back into the role of a Consultant Cardiologist."
9.11 Mr Kennedy's position was that he was supportive of Dr Mattu's academic interest and activities but he wanted Dr Mattu to return to the Trust as a practicing Cardiologist. Once Dr Mattu had successfully completed his re-skilling programme and should Dr Mattu then wish to pursue additional overseas experience, then he would consider a secondment proposal (pg275). This was not acceptable to Dr Mattu, as Dr Mattu objected to research being considered as a peripheral of his job.
11.6 I have reviewed the contractual documentation available to me. The contractual documentation suggested that Dr Mattu was appointed as, and remains, an NHS Consultant, engaged primarily in clinical work with an interest in research. Dr Mattu's contract of employment...
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