Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust

An employer’s contractual disciplinary decision to dismiss an employee does not itself determine a civil right for the purposes of Article 6. It asserts or exercises a contractual right. Any resulting dispute is determined subsequently by a court or employment tribunal.

Whether misconduct by an NHS doctor is professional misconduct depends on the substance of the disputed issue and whether medical experience or expertise would assist its determination. A disagreement about the contractual sequencing of clinical and academic duties may be an employment or managerial issue requiring no medically qualified panel member.

Fairness does not invariably require adjournment because an employee is unwell. The decision depends on all the circumstances, including previous adjournments, available medical evidence, representation and the need for expedition.

A consultant cardiologist was summarily dismissed by an NHS trust following disciplinary findings that he had refused reasonable instructions concerning his return to work, disclosed confidential information or made false allegations, and misrepresented the effects of illness. An independent appeal panel upheld the dismissal.

The consultant sought declarations, injunctive relief and damages. A Deputy High Court Judge dismissed the claim in [2011] EWHC 2068 (QB). The consultant appealed on three grounds: whether the first allegation involved professional conduct and therefore required a medically qualified panel member; whether refusing a seventh adjournment was unfair; and whether the disciplinary proceedings determined civil rights within Article 6.

1. Appeal dismissed by a majority. Stanley Burnton and Elias LJJ held that the first allegation did not involve professional conduct, that refusing another adjournment was fair, and that Article 6 was not engaged. Sir Stephen Sedley agreed on the adjournment and Article 6 issues but dissented on classification.
2. The contractual disciplinary procedure required a practical and purposive construction. Professional misconduct was not synonymous in every case with clinical misconduct. The relevant inquiry was whether medical experience or expertise was needed to determine the substantive issue. The first allegation concerned whether the Trust could reasonably require the consultant to resume the principal, clinical part of his duties before academic reskilling. That was a contractual and managerial issue. Medical expertise would not assist in deciding the reasonableness of the instruction or the response to it. The second and third allegations likewise raised no medical issue.
3. Fairness did not require a seventh adjournment. Six postponements had already occurred, the investigation was prolonged, some matters were old, the medical evidence did not state that the consultant could not attend or identify a definite future date, and an experienced representative could present his case. Expedition was legitimately required.
4. An employer dismissing an employee exercises or purports to exercise a contractual power; it does not adjudicate the employee’s civil rights. The right to practise a profession is directly determined where a regulatory body legally prohibits practice. Dismissal by one employer leaves the employee legally free to practise elsewhere. Its practical effect on employability or reputation does not change the character of the employer’s act. The obiter approach in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789, under which grave charges effectively barring future NHS employment could engage Article 6, did not represent the law.
5. A later dispute about wrongful or unfair dismissal is determined by an Article 6-compliant court or tribunal. In a wrongful dismissal action, absent the clearest contractual language making the employer’s findings final, the court may determine whether the alleged misconduct occurred and justified summary dismissal.
6. Sir Stephen Sedley considered that the reskilling dispute substantively concerned the need for research reskilling and therefore required medical input. He would have held the disciplinary decision void for want of a medically qualified panel member.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal in [2012] EWCA Civ 641.
2. High Court, Queen’s Bench Division: A Deputy High Court Judge dismissed the consultant’s claim for a declaration that his dismissal was ineffective and for consequential relief in [2011] EWHC 2068 (QB).
3. Contractual appeal panel: An independent panel upheld the findings of gross misconduct and the sanction of summary dismissal.