This appeal arose out of a situation where the claimant had been summarily dismissed from their job as an emergency surgeon for gross misconduct.  The impugned conduct was related to the claimant’s alleged rudeness and failure to follow reasonable instructions.  There were no allegations relating to the professional conduct and medical skills of the claimant.

The investigation and disciplinary process was carried out under the ‘Maintaining High Professional Standards in the Modern NHS’ framework.   This policy required that a three-person panel, including an independent doctor, would be convened to carry out the disciplinary procedure.     Whilst there were a wide range of claims brought to the Tribunal originally, the appeal that reached the Court of Appeal in this case related to disciplinary procedure.  The issue with the procedure was that the Trust had decided not to have an independent doctor on the panel as they felt the issues solely centred upon the personal conduct rather than the professional conduct of the claimant.   The EAT upheld the decision of the ET that the claim should be dismissed and noted that the allegations as put forward by the trust were personal ones and that there was no requirement to have the independent doctor.

The argument made by the claimant at the Court of Appeal was that the personal issues complained of arose out of the exercise of her medical skills and that as it falls within the full range of the professional duties of a consultant there should have been an independent doctor present.  In essence, the argument was that the ET and the EAT had failed in bringing professional misconduct and clinical misconduct together.

In the range of allegations, only one had given difficulty to the EAT in the split between what is personal and what is professional.  This related to the refusal of the claimant to demonstrate why certain patients had been listed for surgery before those who had already been waiting beyond the maximum 18 weeks.

The Court of Appeal held that in determining whether allegations were professional or personal was to be determined by the court and not by the Trust alone.  On that point, the Court of Appeal held that the paradigm of professional conduct was the work carried out in the treatment of their patients.   Accordingly, any professional misconduct would normally relate to their clinical misconduct.  In examining the allegations, the Court held that they were related to the personal conduct and that even the allegation relating to certain patients being selected for surgery over others was personal as the issue was the refusal to explain rather than the exercise of medical skills.  For that reason, there was no requirement for the Trust to have an independent doctor on the panel and the appeal was dismissed.

Practical Lessons

This case demonstrates that whilst there may be a procedure outlined in particular policies of the employing institution there is an element of flexibility.  This rested upon the make-up of the disciplinary panel and whether there was a need for an independent doctor.

The Trust made a determination that the allegations did not relate to the clinical conduct of the claimant and decided not to have the independent doctor present.   Great care must be taken though as the Court held that they will decide whether the conduct is personal or professional and not the Trust.  In this situation, the Court agreed showing that there is that element of flexibility yet it should not be regarded as a subjective decision to be taken by the employer.
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-s-idu-v-east-suffolk-and-north-essex-nhs-foundation-trust-ukeat-0015-18-da