Mr C White v London North West University Healthcare NHS Trust: 3304625/2024
JUDGMENT
[1]The claim to have been unfairly dismissed is well-founded and succeeds. The Claimant was unfairly dismissed.[2]The claim of wrongful dismissal is well-founded and succeeds.[3]Remedy will be considered at a later date. Approved by JUDGMENT having been sent to the parties on 5 December 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024, the following reasons are provided.REASONS
[1]The Claimant was employed by the Respondent as a Maxillofacial Prosthetist and Technologist at Northwick Park Hospital (the “Hospital”) from 1 March 2000 to 19 December 2023 when he was summarily dismissed for gross misconduct. The Hospital is a public hospital, part of the National Health Service (“NHS”), although private patients are also treated there.[2]The Claimant’s alleged misconduct was, firstly, to have intentionally treated a private patient at the Hospital without notifying the Respondent. Secondly, to have treated that patient pursuant to a referral from a maxillofacial surgeon (the “Surgeon”) who did not work for the Respondent and was not authorised by the Respondent to treat private (or indeed any) patients at the Hospital. I will refer to the patient as “Patient X”; neither their identity nor the precise treatment they received is relevant, although it will aid understanding to provide some outline details where appropriate.[3]As to the first allegation, the Claimant refutes that he treated Patient X without notifying the Respondent. He says that he notified the Respondent by handdelivering a patient registration form to the appropriate department – “TrustPlus” – via its service desk. TrustPlus handles all private business conducted at the Hospital.[4]As to the second allegation, the Claimant accepts that the Surgeon was not authorised to treat patients at the Hospital and that he should not therefore have treated Patient X in the circumstances. He accepts, in hindsight, that doing so could amount to misconduct. He refutes that the error was intentional. He argues that, in the circumstances, it was unreasonable for the Respondent to treat his conduct as sufficient reason for his dismissal. He also submits that his actions did not constitute a fundamental/repudiatory breach of his employment contract such as to entitle the Respondent to terminate it without notice.[5]After a period of ACAS conciliation between 14 March and 5 April 2024, by claim form dated 2 May 2024, the Claimant brought proceedings for unfair dismissal and wrongful dismissal. Evidence was provided by way of witness statements; one from the Claimant and five from the Respondent. All of the witnesses appeared before me at the hearing and answered questions. I am grateful to everybody for their attendance and the assistance they provided to the Tribunal. I also had regard to a 1,413-page file of documents, together with some additional correspondence – notably WhatsApp screenshots and emails – provided during the course of the hearing.The law
[6]The relevant law that I need to apply is as follows.[7]Part X of the Employment Rights Act 1996 is entitled “Unfair Dismissal”. It includes the following sections. Section 94 provides as follows. 94. The right. (1) An employee has the right not to be unfairly dismissed by his employer.[8]Section 98 provides as follows. 98. General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show– (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it- (a) … (b) relates to the conduct of the employee... (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[9]In relation to the claim of wrongful dismissal, contract law principles apply. If the Claimant committed a repudiatory breach of his employment contract, the Respondent would be entitled to treat it as terminated with immediate effect and to dismiss the Claimant without notice. Due to its nature, there will be implied into every employment contract a term of mutual trust and confidence.The facts
[10]When required to do so, I made findings of fact on the balance of probabilities, in light of all of the information available to me, which included the available documentation, what the witnesses had written in their statements and what they told me at the hearing.[11]I will address first of all the credibility of the Claimant’s evidence as that was highly relevant, especially to the wrongful dismissal claim. I will briefly refer to certain matters that any third party reading this decision may not understand at first. They are invited to read my chronology of the facts beforehand for a better understanding. For the purposes of my decision, the parties will be aware of the references I make and I considered it important for them to know why I accepted the Claimant’s evidence before explaining the relevant facts.[12]The issue of most importance was that the Claimant said that he had attempted to notify the Respondent of his treatment of Patient X by hand-delivering a patient registration form. The Respondent had determined that he had not done so. If the Claimant was right, the Respondent’s argument that he had committed a repudiatory breach of contract would be significantly weakened. For the purposes of the wrongful dismissal claim, I had to make a specific finding on this matter. For the unfair dismissal claim, I only had to assess whether the Respondent’s determination was reasonable in the circumstances.[13]The Respondent raised numerous valid points that raised suspicion about whether the Claimant was a reliable and credible witness. They included that the Respondent was hindered by incomplete disclosure on his behalf. Certain relevant documents were only disclosed at the hearing and, indeed, on two separate occasions during the hearing. The second “batch” was only disclosed at lunchtime on the third day of a four-day hearing. The Respondent said this demonstrated a “reactive” approach to the case and that the Claimant only disclosed documents when faced with insurmountable difficulties with explaining his case or evidence. The Respondent encouraged me to infer that the Claimant’s account was incomplete and unreliable.[14]Other matters relied on by the Respondent focused on the Claimant’s alleged evasiveness around certain facts and the circumstances of, and language used in, certain exchanges that I was invited to find inherently dubious. I will now provide examples. This is not an exhaustive list. It is a roughly chronological overview of some of the main points I was invited to take into account in assessing the Claimant’s credibility.[15]The first matter concerned why the Claimant was unable to better explain his relationship with the Surgeon, with a consistent and transparent account about the extent of their collaboration.[16]Other matters were as follows. 16.1. Why did Patient X’s spouse suggest in an email that the first meetings that they had had with the Claimant were in March 2022, months before the Claimant says they met? 16.2. Why were exchanges that took place concerning Patient X’s treatment all seemingly by WhatsApp or by personal email rather than by other method of communication, for instance via the Claimant’s NHS email account? 16.3. Why, when the Claimant insists that he only saw Patient X for the first time in September 2022, does he send an email on 1 September 2022 saying: “Can you come and see me ... at the same place?”, suggesting that at least one prior meeting had taken place? 16.4. Why did the Claimant not chase the TrustPlus manager in relation to the registration of Patient X or provide more details about the treatment? Why was there no electronic documentary trace of that registration? 16.5. Why did neither the Claimant nor Respondent have any good documentary record of the treatment undertaken? 16.6. Why did the Claimant not chase up payment for his work from TrustPlus? 16.7. Why were the precise payment arrangements and agreements not clearer as between the Claimant and the Surgeon? 16.8. Why, in the Claimant’s witness statement, does he say that payment via Aviva (Patient X’s health insurer) was to be organised by the Surgeon “as was the usual protocol”, when he was paid directly by the Respondent? 16.9. Why, when the issue of complications regarding Patient X’s treatment was first raised by the Surgeon in February 2023, did the Claimant send no reply? 16.10. Why was no response issued in writing when the Surgeon mentioned the Claimant not being paid? 16.11. Why did the Claimant not notify the Respondent of any of the above when the Respondent was ultimately contacted by Patient X when they raised a complaint? 16.12. Why did the Claimant initially say that he had “sent” the appropriate patient registration document to TrustPlus, then say that he had handdelivered it, which was a far more convenient explanation for it getting lost? 16.13. Why did the Claimant not participate more actively in his disciplinary investigation? 16.14. Why did he record in his schedule of loss for the purposes of these proceedings that he had undertaken no work since his dismissal apart from for Tesco and for a laboratory when he said at the hearing that he had made a “wafer” for the Surgeon in January 2025? 16.15. Why did the Claimant decide not to call the Surgeon to appear as a witness before me when he was initially minded to do so? 16.16. Why would he then have given the reason as the Surgeon being busy, when it appeared to be a conscious choice not to call him?[17]As I have said, this is not an exhaustive list of matters raised. I have to say that Mr Ross did a very impressive job of explaining why he believed that I should not take the Claimant to be a credible and reliable witness. He prepared very thorough and persuasive arguments in that regard.[18]Nevertheless, two main factors convinced me that the Claimant was a reliable and credible witness. The first of those related to the poorly-conducted disclosure exercise. As I have recorded, further disclosure took place at lunchtime on the third day of a four-day hearing. I do not dispute that as being generally unsatisfactory; it plainly was. However, of crucial importance to my consideration of credibility was that the further disclosure was broadly supportive of the Claimant’s case.[19]I will explain the facts more fully later, but the disclosure shows that the Claimant’s WhatsApp messages with the Surgeon relating to Patient X started only in June 2022, which supported his own timeline of events. No messages had obviously been deleted from that chain. They were disclosed at haste over a lunch break. Prior to the disclosure, there had been some doubt about the Claimant’s first engagement with Patient X. What the WhatsApp conversation showed was that the Claimant had met with the Surgeon in June 2022 to discuss Patient X. The Surgeon then said that he would conduct his part of the treatment on 7 July 2022, inviting the Claimant to see Patient X only around two weeks later. Ultimately, the date of 28 July is recorded, so three weeks later.[20]The follow up WhatsApp messages that had already been disclosed showed that the Claimant did not perform any treatment until September 2022, all of which is consistent. The “new” exchanges simply confirmed that there was no question of him having met with Patient X in March 2022, as their spouse had written.[21]A second matter of some relevance was that the late disclosure contained a screenshot of Patient X’s medical data, as required for registration purposes. The screenshot itself had already been disclosed but its provenance was unclear, which was of some relevance as to how/when the Claimant became aware of Patient X’s insurer and would have been in a position to register them with TrustPlus. There had been some indications it might have been sent to the Claimant only after his treatment, significantly undermining his case. The disclosure proved it was received beforehand, in June 2022.[22]Just as importantly as these two matters, nothing contained within the late disclosure negatively affected his case. At best, it suggested that he may have had a meeting with Patient X and/or their spouse at the end of July (a few days before he went on annual leave). The Claimant has denied that. The message is unclear whether the meeting actually took place.[23]What is important is that, even if a meeting had taken place, it would in fact simply have better explained a series of references to the Claimant having possibly had more than the four appointments he believes he had with Patient X. It would also help explain the reference to the Claimant having written “at the same place” in his email of 1 September 2022 (that I have referred to above). I ought to add that largely the same considerations would apply to a meeting having been arranged or mooted, but which did not ultimately take place for whatever reason, or indeed to it only having been a brief phone call.[24]Either way, it’s relatively clear that any such meeting would only have been a preliminary appointment a few days prior to the Claimant heading on annual leave. Patient X’s treatment commenced only in September. The only real importance of any such meeting would have been as a test of the Claimant’s memory of peripheral matters. Had it taken place, there would be nothing inherently surprising about the Claimant having forgotten about it. He would presumably have been focusing on the treatment itself which did not start until over a month later. When the issue was first raised with the Claimant in the context of Patient X’s complaint almost a year later in June 2023, there would have been no particular reason for him to remember what was likely to have been a fleeting and possibly rather informal preliminary appointment in July 2022 (if it took place at all), in addition to the multiple appointments that took place in September and October related directly to the treatment. Ultimately, there would simply have been no good reason for the Claimant to intentionally withhold disclosure of this exchange or appointment; any possible meeting in July 2022 was, in reality, rather irrelevant.[25]The Respondent submitted that, if there had been a meeting in July 2022, it would have been more important than I have made out because it was a prereferral meeting, prior to the Claimant having received formal instructions from the Surgeon. Any treatment would therefore have been inappropriate at that stage. That may be so, but, again, it was clear to me that any such appointment, if one took place, would have been merely introductory. There would be nothing inherently untoward or unacceptable about that. No treatment took place prior to any prescription being given. Furthermore, the meeting would have taken place at the Surgeon’s direct request and it was not unusual for the Claimant to be involved in clinical decisions in advance of them being made, such as with regard to the choice of prosthesis.[26]I was informed that, even though he was initially represented, and was represented at the hearings also, in fact the Claimant has conducted most of the case as a litigant in person. He may well not have understood the duty he was under or simply the relevance of the documents. He was ordered to disclose documents “that are relevant to the issues”. It may well be that he had no idea that these documents could be considered “relevant” to his case.[27]A second aspect to this late disclosure relates not just to the contents, but its context. It was provided during cross-examination. The Claimant was giving short and clear answers to the questions he was asked. He himself highlighted issues that directly gave rise to the further disclosure requests. If he had intended at any point to either fabricate evidence, or to conceal the existence of certain messages, why would he have done that? If he had intentionally decided to conceal the messages (unlikely as that may be, due to them containing nothing particularly detrimental to his case), he would presumably have been very much minded to keep them concealed. In relation to the final disclosure, he could very easily have responded to say that he could not recall how he received the screenshot in question, or that he no longer had it when Mr Ross asked him how he had received it. Instead, he simply answered (entirely truthfully) that he had received it by WhatsApp. He did not add anything to the effect that he no longer had it. No-one would have known any better. When asked for a copy, he simply looked for the messages and forwarded them on.[28]These matters helped me to believe that the Claimant might be a straightforward and honest witness. The other was that, prior to the lunch break on that third day of the hearing, I had a feeling that the Claimant was rather recollecting from the documents that he was reading and being referred to, rather than actually saying what he remembered. After the break, I asked him to focus more on looking at me and engaging with the questions asked rather than looking at the documents and providing answers based on those. He provided longer and more helpful answers that remained consistent with his case.[29]Once satisfied that the Claimant was not seeking to be evasive, rather was trying his best to explain his recollections, it led me to attempting to consider his evidence and case through that prism. This allowed me to take a different view about the numerous alleged inconsistencies and unexplained matters that Mr Ross had expertly highlighted. On analysis, the Claimant had a reasonable and rational answer to all of them, even if they weren’t always immediately apparent. I will now answer the 17 questions that I have recorded above accordingly. 29.1. In relation to his collaboration with the Surgeon, I was told that the Claimant treats hundreds of patients via various different referrals, from numerous consultants at different hospitals. He will not be able to recall exactly from whom each patient has been referred and it is hard to see why that would matter to him. He would have had no particular reason to dwell on the identity of the referrer, as opposed to the patient and the treatment they require. There was no doubt they would have worked together at various points in the past as the Surgeon used to be employed at the Hospital. 29.2. In relation to Patient X’s spouse’s suggestion that the first meeting with the Claimant took place in March 2022, the WhatsApp messages disclosed at the hearing indicate clearly that it did not. The earliest meeting that might have taken place would have been in July 2022. 29.3. As to why the Claimant’s exchanges were predominantly by WhatsApp rather than by professional email, the Claimant said that he was a very busy man and he spends his life typically making phone calls or short text exchanges, rather than sending emails. There is nothing inherently suspicious about that; it is an efficient and effective method of communication. Equally, there is no obvious reason why exchanges with a private patient would or should be conducted through an NHS email account and some would justifiably consider it peculiar to have done so. 29.4. As to the 1 September 2022 email, maybe there had been a preliminary meeting in July 2022 or maybe one had been scheduled that did not take place, or maybe there had been a phone call between the Claimant and Patient X and/or their spouse at some point. It would not have been one at which any treatment took place, so there would be no obvious reason for the Claimant to recall it. It could also have been just a peculiar turn of phrase. 29.5. As to the lack of medical records, the Surgeon was the treating consultant. The Claimant was “just” making and fitting an overdenture, which I do not mean in a way to diminish the nature or skill involved in the task, simply to clarify the Claimant’s role in the treatment process. All he needed to know from the Surgeon was what he wanted him to do. He then did it. Once the nature of the Claimant’s work was clarified, it was apparent that there was really no reason for any lengthy document exchange to have taken place. A short prescription was all that was required and that was sent by the Claimant to the Respondent in September 2023 when requested. The Claimant said that he wrote brief notes. He certainly confirmed the work done by photos sent to the Surgeon. 29.6. In relation to why the Claimant did not chase up Patient X’s registration with TrustPlus, or why there was no email trail about that, there would have been no obvious reason to chase it up. If he did provide the appropriate paperwork, as he said he did, the next step was for him to provide his invoice (or what has been referred to as an invoice, which I will explain later). There would have been no reason to chase. 29.7. As to why the Claimant did not chase TrustPlus for payment, he said that he never provided his “invoice” so did not expect to be paid. He explained that he likes to wait for feedback from his patients before requesting payment. In this case, a complex procedure had been undertaken. By February 2023, only four months had elapsed since the treatment and he was informed of Patient X’s dissatisfaction. He therefore chose not to charge for the treatment. The Claimant said at the hearing that he would have started to chase up feedback from the Surgeon before very much longer; that is a perfectly plausible account. The Claimant’s income from private medical work is not a significant proportion of his pay. 29.8. As to why the precise payment arrangements and agreements were not clearer, it was important to stress (as I will come on to later) that the Claimant does not himself arrange the billing of, or payment for, private treatment. That process is consultant-led and arranged through the TrustPlus service. The Claimant “invoices” for his work via TrustPlus and payment is made to TrustPlus. The Claimant’s treatment of a patient is limited in scope and responsibility. Essentially, he conducts whatever task a consultant asks him to undertake. In many instances, the Claimant will have some prior involvement in the choice of procedure due to his specialist skills and knowledge, but he ultimately treats patients in accordance with a consultant’s instructions. There was no obvious reason why he would be familiar with, or very clear about, the exact payment arrangements relating to Patient X’s treatment. All he knew was that Aviva, as their insurer, would ultimately pay. 29.9. On the linked issue of the “usual protocol” for progressing private treatment that the Claimant referred to in his statement, this meant, essentially, that the consultant (the Surgeon in this case) conducts the fee negotiation with the patient/insurer and obtains approval for the treatment. The Claimant then files his “invoice” with TrustPlus once his work is done and that service arranges his payment. His fee is basically derived from a schedule of appropriate charges for a given treatment. That essentially is the Claimant’s extent of knowledge of the process, which helps to explain his lack of detailed explanation of the arrangement. Firstly, it isn’t a matter on which he takes any lead; secondly, he did nothing other than he would otherwise do. The Respondent’s suggestion that payment was being arranged via the Surgeon fails to account for the February 2023 message whereby the latter “understands” that the Claimant had not yet been paid. If the Surgeon had been directly responsible for arranging for the Claimant to be paid, there would be no place for such an “understanding” as opposed to direct knowledge. 29.10. As to why he did not respond to the Surgeon’s message about Patient X’s treatment in February 2023, I note that no particular reply was requested. That WhatsApp message reads as if it is the Surgeon who is going to do some further investigations and provide the Claimant with an update rather than the other way around. It’s possible the Claimant called the Surgeon of course. 29.11. In the same message, the fact that neither the Surgeon nor the Claimant had been paid is mentioned. Again, this was in the way of a statement, not a question obviously inviting a reply. In any event, it would not have been a surprise to the Claimant as he hadn’t yet requested payment. 29.12. As to why the Claimant did not notify the Respondent of Patient X’s concerns raised in February 2022 or later, I can make numerous observations. Firstly, he believed that he had registered Patient X. Secondly, the nature of the Claimant’s role is that the referring consultant (i.e. the Surgeon) remains responsible for a patient’s care throughout their treatment, so the complaint was primarily one for the Surgeon to address, not the Claimant. Thirdly, as above, it appears that the Claimant had not engaged with the February 2022 WhatsApp message, which was further to an unspecified complaint, not directed at the Claimant. He had not been contacted by Patient X directly at any point. It’s quite possible he had failed to register or recall the message. Just as much to the point, his responses to the Respondent’s questions were focussed on the nature of the treatment, not procedural matters. From his initial report to the Respondent dated 10 August 2023, it appears the Claimant was asked what he could recall of Patient X and was notified that the Respondent had no record of their treatment. He answered those two queries by stating that he had registered Patient X with TrustPlus and then detailed the treatment provided. At that stage, he had not been asked about anything else. He recorded that he had not been contacted directly by Patient X or their spouse about the treatment he provided, which was true. He noted that he was aware generally that the dental implant had failed and that remedial surgery had taken place. At this stage, the Claimant did not appreciate the relevance of having treated Patient X via the Surgeon’s referral. He believed he had followed the “usual protocol”. In any event, it’s unclear to me what need he might have felt to provide any further details, which were not especially relevant to the specific treatment he performed. 29.13. As to why the Claimant initially told the Respondent he had “sent” Patient X’s registration documents to TrustPlus, before stating they had been personally hand-delivered, it seemed to me that could just as well be a turn of phrase. At the hearing, he used the same one when referring, under cross-examination, to him damaging his mobile phone. He said that he had “sent” it to a mobile phone shop and then, when queried about where the shop was and proof of postage, he said that he had hand-delivered it. He therefore consistently used this phrase. This could of course demonstrate evasiveness, as Mr Ross submitted, but, on the other hand, it could also be entirely innocent. In context, whether or not and how the Claimant arranged for a phone to be repaired was a rather trivial matter about which to lie, if so minded. It would also seem to me rather peculiar to send a phone by post, with the inherent risk of further damage and/or loss, in circumstances where there is no shortage whatsoever of the sort of shop that would repair a damaged phone, especially in and around London. It was therefore very difficult to attribute any particular relevance to the Claimant’s use of the phrase “sent”. 29.14. In relation to why the Claimant may not have participated more actively in the disciplinary investigation, I note he responded initially relatively fully. His responses thereafter were altogether more brief. This was the first time the Claimant had been subjected to any such proceedings. It is easy to conceive he would have felt vulnerable about that and he said as much. There were few, if any, documentary records available to him. He had been accused of conducting an obsolete procedure, without any knowledge about the specific complaint against him or what Patient X alleged he had done wrong. He had provided a statement. He was then being asked to comment further about serious allegations of clinical misconduct with very little knowledge of those specific allegations. It seems that even the Respondent was unaware of the details. It was not unreasonable for the Claimant to wish to seek clarity about the allegations, which in any event evolved over time, and he believed he had responded to them. In truth, the most complex issue – that concerning the clinical procedure – was never clarified and was then dropped from the scope of the Respondent’s investigation. The Claimant gave clear, albeit short, answers to the questions he believed he needed to or was able to answer. It seemed to me this was not especially dissimilar to how he initially answered questions at the hearing before me. This does not necessarily demonstrate evasiveness. He mentioned his unfamiliarity with the process to be followed and the lack of support he felt he was afforded. He mentioned some of the concerns he had about the disciplinary process due to the manner in which it was handled, including significant delay, and the impact that had on his mental health. I accept that it is perhaps not an especially helpful approach to an investigation or disciplinary process, but the Tribunal must be slow to infer a lack of credibility on that basis alone. This is especially so when a Claimant has provided a reasonable explanation for their choice, even if it was not the most helpful choice from the Respondent’s perspective. 29.15. In relation to the omission in his schedule of loss to refer to a “wafer” he prepared for the Surgeon in early 2025, it is unhelpful and supports the Respondent’s argument. However, it appears to be a one-off task that was undertaken and does not indicate any wider intent to mislead the Tribunal. A schedule of loss is a relatively broad summary and was always likely to be subject to further discussion and scrutiny were the claim to succeed in any event. 29.16. In relation to not calling the Surgeon as a witness, there are various reasons why that could have happened. Maybe it was simply the fact that he was busy and could not attend. Maybe it was a decision that was taken on advice, in light of what the case was perceived to be at that time. It is unclear what he could genuinely have added to the process – the main facts around his involvement were not in dispute and were clear enough from the available documents. Again, there is very little weight I can attach to a decision not to call a witness in such circumstances. There was no suggestion he would have been or risked becoming a “hostile” witness. 29.17. As to whether the Claimant actually gave the reason that the Surgeon was busy and whether that was the case either initially or since the Claimant initially chose not to call him was rather unclear to me. It may just as well have been an assumption bearing in mind the Surgeon’s professional engagements. Ultimately, it was a matter of no real importance to assessing credibility.[30]So, to summarise and repeat, once each of these issues has been analysed fairly, without preconception, and with a mind to the Claimant’s position/knowledge at the relevant times, individually or cumulatively they do not indicate that the Claimant is or was unreliable or lacked credibility. The same considerations apply to the other matters raised by the Respondent. I think the Claimant did his best to be as straightforward and honest as he could be, like every witness that appeared before me, which is exactly what is expected before the Tribunal. Plainly certain matters of detail may be lost in the haze of time (on all sides), which is why documents often provide the best source of evidence. However, just because relevant documentation no longer exists or has not been found does not mean that a witness is not being truthful. Context is so important and is crucial to this case.[31]Now that I have explained in some detail why I found the Claimant to be a credible and reliable witness, I will explain the relevant factual background. I have already referred to much of it above, albeit perhaps not very clearly to the unfamiliar. I will address the facts in sections. The Claimant and his work[32]The Respondent employs numerous staff, with a range of skills and responsibilities. So far as this case is concerned, it employs “consultants” (senior doctors specialised in a particular area of medicine), “clinicians” (a broader term, encompassing all those directly responsible for treating patients), as well as “technicians” (people who undertake specific tasks on another’s instruction, including scientific analysis and other laboratory work). I suspect this is an overly simplistic interpretation and not entirely accurate, but it is sufficient for present purposes.[33]The Claimant is a Maxillofacial Prosthetist and Technologist. Essentially (and this is not a critical part of my judgment, so I apologise if there are any errors in this description), he makes and fits prostheses, which are artificial body parts or components, to people who need them from their neck area upwards. The work involves designing, fabricating and “fitting” different forms of prostheses using various materials and techniques. It is clearly a highly specialised and skilled role. The Claimant therefore spent a lot of his working time preparing bespoke prostheses in the designated Hospital laboratory. Naturally, he also saw patients and treated them directly because he needed to design and fit their prosthesis. This is relevant as there was some debate and uncertainty at the hearing about whether the Claimant should be considered a “clinician” and/or a “technician”, due to the very specific nature of his role. He would only qualify as the former due to the fact that he directly treated patients in the sense that he had to “fit” the prostheses he had made. I did not see it as necessary to determine the most appropriate classification of his role, nor did I have the necessary information to make a properly informed decision. All that truly matters for present purposes is whether the Claimant was ever the principle treating clinician with primary clinical responsibility for any patient. He was not. I will explain the relevance of this point later.[34]The Claimant’s patients are referred to him by consultants or clinicians. I will refer to these people as the “treating consultant or clinician”. Especially in serious cases, the Claimant would typically meet patients in advance of referral alongside the treating consultant or clinician. This was to assist in the discussion around the type and design of prosthesis to fit. Once the treatment plan was established, the treating consultant or clinician would send a prescription to the Claimant, requesting the chosen prosthesis.[35]Throughout their treatment, the patient would remain under the care of the treating consultant or clinician. The Claimant’s role was specifically to prepare and fit the requested prosthesis. If there were any issues with the prosthesis, the patient would typically return first to the treating consultant or clinician and then, possibly, return to see the Claimant if any further work was required.[36]The Claimant had a busy workload. His focus was on practical tasks. He was not based in an office, spending more time in the laboratory. He was not frequently required to check or send emails. His best estimate was that possibly 10 to 20 percent of his working day would involve digital communication.[37]The Claimant’s role is not of the sort that generates a great deal of written notes. He did not handle much, if any, patient administration. Those matters were dealt with primarily by the treating consultant or clinician. If the Claimant did make notes, often they would be brief. Sometimes they would amount to as little as three lines on a piece of paper. The prescription itself is the medical “note” that explains the treatment that the Claimant has been asked to provide. I was not given any evidence that the Respondent had ever complained about the extent of the Claimant’s notes.[38]The Hospital’s operation was, at least at the relevant time (and possibly remains), largely paper-based, certainly as far as the prosthetics department was concerned. The Claimant has access to email and the intranet and knew how to use both.[39]The vast majority of the Claimant’s work involved public NHS patients. He would typically see one or two private patients a year. Whenever he did, it was entirely consultant-led. The majority of his private work was for one particular consultant based at the Hospital. When the Claimant treated private patients, there was very little difference in his work. He focussed on fulfilling prescriptions, whether provided by an NHS consultant or one acting privately. He had provided treatment under the Surgeon’s instruction in the past as he had been employed by the Respondent between 2010 and 2014. Some of this treatment may have been private.[40]In relation to private treatment, the Claimant might discuss the overall fee that would be charged for the treatment, but that would not include any form of negotiation about his own charges, which he did not set. When it came to billing for his work, he would send an “invoice” to TrustPlus. In reality, this would not be an invoice in the strict sense of a document requesting payment of a specified fee. It would be a brief confirmation of the work undertaken, on whom and for which consultant. The TrustPlus team would then determine the appropriate fee to charge (encompassing the Claimant’s time and use of Hospital equipment) and prepare an invoice on that basis directed to either the patient themselves or to their insurer (more frequently). The fee that would be charged for the Claimant’s work would be determined by TrustPlus. TrustPlus would process the overall payment due to the Respondent and then pay the Claimant his “share” via the Respondent’s payroll. To that extent the Claimant can be considered a “resource” of the Respondent. He provides private treatment, but on the Respondent’s behalf and under conditions set by the Respondent. He performs treatment as an employee, rather than as a private fee-earning consultant. In that sense, the fee he receives could be considered a form of commission and any decision to waive any of his fees would not be a decision for him to take without the Respondent’s authority. The treatment the Claimant provides is, on proper analysis, further to a contract between the treating consultant and/or their patient/insurer and the Respondent.[41]When the Claimant commenced his employment in 2000, the role of Maxillofacial Prosthetist and Technician was unregulated. The role did not easily correspond to the ambit of any existing regulator. In 2008, it was determined that the role should be subjected to regulatory control. Some detailed consideration was given as to where exactly the role would best fit in the existing regulatory framework. It was determined that the General Dentist Council (“GDC”) would be the most appropriate regulator. It seems that even today the precise regulatory environment of Maxillofacial Prosthetists remains somewhat unclear and in its infancy. As I have outlined above, although in many respects the Claimant’s role is akin to that of a laboratory technician, it is also very close to that of a clinician (i.e. somebody responsible for the direct care of patients). Once again, it is not for me to define the ambit or scope of the role or its regulatory structure. Nevertheless, the lack of clarity around the Claimant’s work and responsibilities is very important to the claim as I will explain.[42]The Claimant had no notable disciplinary history. In fact, he had none at all. He does have a history of anxiety and stress and he has had some absences from work on that basis, although nothing of particular note. The Respondent and its policies[43]The Respondent is an NHS trust that operates the Hospital, which treats both public and private patients. Its focus is on the former. However, it was a formal requirement of the Claimant’s role, detailed within his job description, to treat private patients when necessary.[44]The Respondent has a protocol to follow in respect of the treatment of private patients. It is encapsulated in its Private Patient Policy (the “Policy”), which the parties agreed applies to all of the Respondent’s staff. I accepted that, but the reality is that it is aimed primarily at consultants as I will explain. It is central to this claim. Although of course the Policy must be read fairly in context and should not be analysed as if statute, its objective interpretation is very important to both claims. I mean “objective interpretation” as being from the point of view of a reasonably knowledgeable Respondent employee, which it seems to me is what matters most. I will therefore explain its contents in some detail. I note before doing so that apparently few, if any, of the Respondent witnesses appeared to properly understand what the Policy says. The version that I was presented with, which was the one that was current at the time of the Claimant’s dismissal, was prefaced by the following introduction: “This policy requires updating, as currently it does not allow sufficient governance by the MAC [Medical Advisory Committee] on those who have Private Practising Privileges with TrustPlus. This is to strengthen the information requested to ensure that the MAC and TrustPlus are confident that those Consultant utilising the services have the right registrations and indemnities.”[45]It is clear from this statement that the Policy is principally aimed at consultants. That is unsurprising as they are the most senior medical specialists, most likely to be sought out by potential patients for private treatment. The formal “introduction” section of the Policy states that the Respondent encourages private treatment as “a means of generating additional income, attracting the highest calibre of consultant staff and enhancing the Trust’s reputation as an international referral centre”. The Respondent “aims to encourage those consultants employed by the Trust on a substantive or honorary contract basis to develop their individual private practice within the trust”. Once again, the repeated reference to “consultant” pre-supposes that they are the people most able and attracted to undertaking private treatment, therefore most concerned by the Policy. Whenever he undertook private work, the Claimant always did so on referral from a consultant.[46]Unsurprisingly therefore, almost the entirety of the Policy was directed towards “consultants”. In some parts, it refers more broadly to “clinicians”. This is also unsurprising as, between them, consultants/clinicians will be the people who are responsible for, and will principally undertake, private medical treatment. All clinicians should be aware of their responsibilities, not only consultants.[47]In many sections, the only reference in the Policy is to “consultants”, however, despite there being no obvious reason why “clinicians” more broadly would not be concerned also (for example 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.17, 5.6, 5.8, 5.9, 5.10, 5.14, 5.15, 5.16, 5.17, 5.18, 5.19, 5.20). A good example is section 5, which refers variously to “clinicians”, but apparently interchangeably with “doctors” or “consultants” (of which the Claimant was neither). There is a reference in section 5.15 to clinicians meaning “(doctor, nurse, paramedical clinician)” in relation to indemnity insurance. I therefore found that references to “clinicians” were meant as largely synonymous to “consultants”, as they are most likely to undertake private treatment, but would extend to all doctors, nurses and paramedical clinicians (which I took to mean those involved in the provision of emergency treatment) also.[48]Neither prosthetists nor technicians are obviously addressed directly anywhere within the Policy. They are not in the defined category of “clinicians”, nor are they the treating clinician in the context of any treatment. They most logically fall within the broad term “member of NHS staff”. Again, that is unsurprising because, as I have explained previously, they operate under a consultant’s responsibility (at least, the Claimant certainly did). This is consistent with every reference to “NHS staff” and sits comfortably beside the nature of the Claimant’s employment that I have described above. Essentially, he is a member of NHS staff who consultants will be able to call upon with the Respondent’s permission (see sections 3.5 (“The Trust’s facilities, staff and services may only be used for private practice with the prior agreement of the [Respondent]”), 3.11, 3.14 (that I will quote below) and 3.15 (“Consultants/clinicians may not use NHS staff without the agreement of the Trust” – I will quote in full below).[49]The “key points” and “purpose” of the Policy include making “all staff aware of the procedures to be adhered to with regard to the management and treatment of private patients within the Trust”, making “all staff aware of their responsibility with regard to identifying private patients and ensuring that their Trust colleagues are made aware of their private status so that the patient status is correctly recorded in the Trust’s systems” and ensuring “that there is a complete audit trail of all consultations, admissions, diagnosis and treatment (for all private patients) carried out within the Trust in order to protect the Trust from claims of clinical negligence and to comply with the requirement of insurance companies”.[50]The Policy itself explains what these principles mean. In reality, nearly all requirements are placed on consultants (or sometimes “consultants/clinicians”).[51]As to the “procedures”, section 3.13 requires consultants/clinicians to apply for “private practising privileges” in order to undertake private treatment at the Hospital. Section 4 explains what that entails. The Respondent’s Director of Private Patients said at the hearing that the Claimant did not qualify for private practising privileges, as only consultants or clinicians responsible for a patient’s care do. This reflects that, even if he is one, he is not the sort of “clinician” concerned by the Policy. He was, however, both entitled and expected to treat private patients on referral from any consultant with private practising privileges. Peculiarly, and demonstrative of the difficulty “categorising” the Claimant’s role, in paragraph 10 of the Director’s witness statement he referred to the Claimant nevertheless being a “clinician” to whom the Policy applies. Accordingly, as I understood it, the Director’s position was that the Claimant was not a clinician for the purposes of obtaining private practising privileges, but was a clinician for the purposes of the Policy. That is a distinctly confused opinion to hold, in circumstances where the Policy is primarily aimed at informing those with such practising privileges of their obligations in relation to the treatment of private patients.[52]Section 3.14 is as follows: “Consultants/clinicians may not use the Trust’s facilities for the provision of private patient care without the agreement of the Trust. This applies whether the private care is carried out in their own time or in annual or unpaid leave... Where the Trust has agreed that consultants/clinicians may use NHS facilities for the provision of private patient care: The Trust may determine and make such charges for the use of its services, accommodation or facilities as it considers reasonable; Any charges will be collected by TrustPlus, either from the patient or the relevant third party; and A charge will take full account of any diagnostic procedures used, the cost of any laboratory staff that have been involved and the cost of any NHS equipment that might have been used”.[53]The Claimant could aptly be described as one of the Respondent’s “services” and/or “laboratory staff”.[54]Section 3.15 is as follows: “Consultants/clinicians may not use NHS staff without the agreement of the Trust. The consultants/clinicians responsible for admitting a private patient to the Trust must ensure in accordance with local procedures that the responsible manager and any other staff assisting in providing services are aware of the private patient status.”[55]The Claimant was “NHS staff”, whose services could not be called upon by a consultant/clinician without the Respondent’s agreement. The consultant/clinician would be responsible for admitting the patient, informing the “responsible manager” and informing staff assisting with treatment that the patient was being seen privately. In this case, the only NHS staff assisting the Surgeon with respect to Patient X’s treatment was the Claimant. So far as relevant to this case, there were no “local procedures” in place.[56]Section 3.16 of the Policy provided: “Only those consultants/clinicians with private practising privileges would have access to TrustPlus facilities and be allowed to see/treat patients privately in other locations across the Trust subject to prior managerial agreement.”[57]The parties accepted that the Claimant was permitted to treat private patients in the prosthetics department, rather than in the dedicated TrustPlus consultation rooms where most private treatment was expected to take place. This was for the obvious reason that that is where the Claimant’s laboratory and specialised tools were located. It was an established practice of which the Respondent was fully aware.[58]Section 5.1 requires “consultants or other doctors directly responsible for the treatment of a [private] patient” to be recognised by the insurer paying for treatment. It is not wholly clear who, if anyone, is required to check this; the policy says “consultants and other staff must ensure that they are recognised [sic] the appropriate and relevant insurance companies before commencing private patient care within the Trust”. The Surgeon was recognised by Aviva. It was unclear to me (and not in issue) whether the Claimant specifically was also so recognised, or whether his recognition was by dint of his employment by the Respondent or the referral from the Surgeon. Either way, there would have been no issue with him being paid for the treatment by Aviva via TrustPlus.[59]The “responsibilities regarding identifying private patients” and ensuring “a complete audit trail” were chiefly detailed in sections 3.15 (quoted above) and 5.[60]Section 5.5 of the Policy is related to record-keeping. It states that “Consultant staff are required to maintain a detailed set of medical records, for each patient they see and treat”. Further that “wherever practical all records should be stored within one records folder, to promote continuity of care”.[61]Section 5.10 provides that: “Before any patient is given an appointment / admitted to any part of the Trust for private patient treatment / consultation, TrustPlus must be informed by the consultant or his nominated representative that this is being arranged. TrustPlus must also be provided with full patient information, treatment plan / procedure details etc. Failure to do so may result in the Trust not being reimbursed for the services delivered”.[62]No reference is made to any failure being considered misconduct. The admissions process was detailed further in Appendix 6 to the Policy, which is entitled “Daycase Booking and Admissions Process”. It is a one-page flowchart.[63]The booking process begins, so far as relevant, by a consultant referral (whether “via medical secretary or in person” – the former must be the “nominated representative” for the purposes of section 5.10 as no-one else is specified) or a private hospital referral. The consultant, their secretary or the relevant private hospital must address the referral to TrustPlus. This process was confirmed by the Director of Private Patients. TrustPlus will then seek any further relevant documentation and coordinate the admission of a patient, including by asking them (usually) to head to the TrustPlus service on arrival at the Hospital.[64]In practice, the TrustPlus finance manager (who dealt with the day-to-day handling of private patients) recognised that private referrals do not always work like that. Although he provided no direct evidence to the Tribunal, he was interviewed in the course of the Claimant’s disciplinary process, the notes of which were included in the file. He confirmed that treatment must be consultantled, but that patients are not always registered with TrustPlus in advance of treatment. He also referred to some patients, notably in radiology and “Max fax” (i.e. the Claimant’s department) heading directly to those departments for treatment, rather than via the TrustPlus reception. He said that admissions of private patients was generally “more devolved now”, meaning managed at a departmental level. According to the finance manager, TrustPlus “[relied] on the local people to tell us if they've seen a private patient in that area”. In those circumstances, TrustPlus would prepare billing retrospectively. His general observation on the matter was: “for outpatients it's a bit of a mis mash [sic]. We know the patient before they go to and the others we know retrospectively. We are relying on the individual departments to make sure what activities are going through their department, whether it be an overseas patient or private patient or an NHS patient to correctly categorise those patients and forward the information on to the relevant parties, which has always been the case. The local managers ,service managers, monitors the patients coming through their door Genuine NHS patient is an overseas visitor. Or is there a private patient and then inform the relevant parties to say.”[65]Section 5.13 confirms that “Private patients are admitted under the care of a designated consultant who bears full clinical responsibility for the patient at all times”. Section 5.14 addresses the rates that consultants will be charged for consulting rooms, facilities and consumables.[66]In relation to patient complaints, section 5.16 states as follows: “The Trust will expect to be notified of and respond to complaints raised by patients accessing private care at the trust via the Trust’s complaints procedure. Consultant staff will be expected to co-operate in any necessary investigations/meetings to enable a complaint to be resolved to the satisfaction of the patient/relative. Consultants are expected to pass any complaints letter received about their private practice to the Patient Advisory and Liaison (PALS) team so that the complaint can be formally logged and resolution monitored via the complaints procedure.”[67]In relation to pricing of treatment, section 5.17 is as follows: “Other than medical fees, unless supplied with written prices clearly marked for patient quotation by TrustPlus it is not permissible for a consultant or his or her secretary to quote a price to a patient for either inpatient or outpatient treatment. TrustPlus cannot accept liability for any pricing misquotations, which occur in this way.”[68]No reference is made to any error being considered misconduct.[69]In relation to the notion of “private practising privileges”, the Respondent informed me at the hearing that there was nothing in the Policy (at the time) to say that consultants not employed by the Respondent could not have them. The Policy has since changed. Now, only people in the Respondent’s employment can have such practising privileges.[70]It is clear therefore that there is very little in the Policy that actually directly concerns the Claimant (or any other NHS staff). It is primarily the consultant or treating clinician with private practising privileges that is required to identify a private patient by, firstly, registering them with TrustPlus (and, where applicable, a “responsible manager” – sections 3.15, 5.10, Appendix 6) and, secondly, informing any colleagues whose assistance they seek that the patient is being treated privately (section 3.15). Although the introductory “key points” and “purpose” refer to “all staff”, the reality is that the Policy does not really concern anybody else. However, I accept that, applying a flexible reading to the Policy, in the context of the NHS where private treatment is not “the norm”, all staff would be aware that some form of record-keeping would be appropriate if they were involved in private treatment, as highlighted in section 3.15. It is, however, only at a very broad level of generality that the Policy can possibly be said to apply to staff other than consultants and treating clinicians.[71]For example, nothing in the Policy places any onus on a member of the Respondent’s staff to check or verify that a treating consultant/clinician has private practising privileges and has undertaken the correct admission or registration process relating to a private patient. As stated above, certainly in the Claimant’s department, there was no specific departmental admissions policy or protocol. Indeed, the Respondent had noted that keeping track of private patients is a general issue across the Hospital. Prior to September 2023, there was no robust or automated system in place to record private patient activity at the Hospital. Since then, access to an electronic system (known as Cerner) required to request any diagnostic services (for instance, blood tests) is conditioned on patient registration. So, to that limited extent, private patients must therefore be proactively registered before requisite tests can be ordered. Otherwise, it would appear that the treatment of private patients at the Hospital relies largely on trust. It is not my role to comment on the appropriateness of that. The view might well be taken that people of the seniority of consultants or clinicians undertaking private medical treatment are likely to be trustworthy and able to self-regulate effectively.[72]The Respondent also has a disciplinary policy. None of its contents are controversial or surprising. Its stated aims are(1) to help and encourage staff to attain the highest standards of conduct and performance and(2) to ensure consistency of treatment. It is stated to be “progressive” and to be focussed on improving standards. All managers’ responsibilities include using mistakes as “learning opportunities” and to consider whether they might be due to unreasonable expectations or a lack of proper explanation, training or management support.[73]Any suspensions are “a last resort” and non-disciplinary. They are a “last resort” even in cases of alleged gross misconduct, where the alleged risks cannot otherwise be adequately mitigated. A stated alternative is supervision. Prior to suspension, employees should be invited to contact a colleague or trade union representative. The Respondent accepts that it is “under a duty to demonstrate care and compassion”, and states that communication should be maintained throughout a period of suspension. Suspensions should be reviewed every two weeks, and their continuation is not automatic.[74]Where allegations of misconduct are raised, informal resolution should always be considered. I was informed by the Respondent at the hearing, and accepted, that when consultants/clinicians fail to declare all of the private treatment they have provided at the Hospital, they are usually given a polite reminder of their responsibilities. This regularly happened at least until September 2023, when the requirement to register private patients became fully integrated into the system for ordering diagnostic services.[75]In relation to gross misconduct, the policy states that dismissal will usually result. Specific policies apply to employees subject to criminal investigation and those who have failed to maintain necessary professional registrations. Examples of gross misconduct include fraud, unauthorised use of the Respondent’s property, serious breaches of policy or of trust.[76]The Respondent also has an investigation policy, which is again uncontroversial. It requires disciplinary investigations to be conducted efficiently and fairly. An investigation officer is required to “[maintain] neutrality at all times” and not to form “an opinion that may influence the outcome” of a disciplinary process. The investigation “should be balanced and impartial and reflect both sides of the case”, including determining the “context/background to the issues”. Although the investigating officer should prepare a written report with conclusions, they should be limited to determining whether there is a misconduct case to answer, without providing a view on any sanction that might be appropriate. The written report should also provide recommendations, where appropriate, as to any action the officer would recommend the Respondent takes in relation to the issues raised/identified.[77]The Respondent also operates an appeal policy. Appeals should be brought within 14 days of a decision, identifying the ground(s) of appeal – there is a choice of three (procedural error, unfairness, new evidence). If the appeal is brought late, a “legitimate reason” should be given. If an appeal is to proceed, statements of case must be submitted 10 days prior to an appeal hearing. The employee’s statement must include their reasons for appealing. Appendix 4 to the policy contains the appeal form, with tick box next to each of the three grounds of appeal, preceding an italicised sentence right at the bottom of the page “Please provide specific details of your grounds for appeal”. It is the only text in the form that is italicised. The Respondent informed me at the hearing that it expects appellant employees to start writing beneath it, even though there is no such space on the form. I was told that the text box will expand once the author starts typing. For my part, it reads as much as an instruction to tick one of the preceding boxes as anything. No other requests for information on the form are italicised. Immediately at the start of the next page is a section for providing details of the appellant employee’s availability. Patient X’s treatment[78]The details regarding Patient X are largely irrelevant to these proceedings. I understood that they had had cancer that severely affected their jaw and mouth. From my brief (and possibly erroneous) understanding, a significant part of their bone and teeth had been lost. They had sought corrective treatment from the Surgeon.[79]It was a complex medical situation with which the Surgeon sought the Claimant’s expert assistance to prepare an “overdenture”, presumably as they had worked together previously at the Hospital. The Claimant agreed. An overall fee of £15,000 was considered appropriate, the Claimant being guided by the Surgeon. The broad treatment chronology was that the Surgeon prepared and affixed a metal plate to Patient X’s jaw on or around 7 July 2022. The Claimant was then tasked with preparing a gold bar, to be fixed in place by four abutments that would be screwed to the plate. A removeable denture could then be clipped to the gold bar and removed when required.[80]The Surgeon had hoped the Claimant would meet with Patient X to discuss his part of the procedure on 28 July 2022. That meeting may or may not have taken place; in any event it would have involved nothing more than a preliminary discussion. The Surgeon’s instructions to the Claimant were recorded in a prescription dated 3 August 2022. The Claimant then went on annual leave in early or mid-August, effectively until the end of the month.[81]On his return or between two periods of leave, the Claimant completed a TrustPlus patient registration form and delivered it by hand to the TrustPlus service desk. I make this finding for the purposes of the wrongful dismissal claim. For the purposes of the unfair dismissal claim, I did not need to make any particular finding, but will record that the Respondent did not believe that the Claimant had done so. In addition to simply finding that the Claimant was a reliable and credible witness, two other considerations led me to this finding.[82]Firstly, although I didn’t obviously have a copy of the patient registration form that the Claimant would have completed, I note from those in the file that most forms had tick boxes and fields with traditional signature panels. They appear principally designed for completing by hand, reflecting the Respondent’s largely paper-based operation. I had no reason to suspect the registration form was any different. For someone used to a paper-based operation like the Claimant, it would have been both logical and likely more straightforward to obtain or print a hard copy and fill it out by hand. Especially as he would not have filled in such forms regularly. Certainly since 2019, it could only have been on two occasions, as he only treated two private patients in that time (apart from Patient X).[83]It was very unclear to me exactly what process would be followed to register patients. As far as the consultant on whose referral the Claimant undertook the vast majority of his private treatment was concerned, the Claimant said at the hearing that he would typically liaise with the consultant’s secretary in relation to coordinating treatment. It may well be that the secretary would register the patient with TrustPlus; certainly that is what the Policy requires. Perhaps they would allow the Claimant to do so in their place, or perhaps they both would.[84]What was clear was that the information the Claimant would provide to TrustPlus would be summary, such as the patient’s name, insurer and referring consultant. It didn’t seem to me that the Claimant would systemically register patients in advance, as some reference was made by the TrustPlus finance manager to patient details being provided after treatment. It may well be that on some occasions he would register in advance, on others he would simply provide his “invoice” with the patient’s details together with a description of the work done. In reality, certainly in August 2022, at which point Patient X would have been the third private patient the Claimant had seen in three years, I found quite simply that the Claimant likely did not have any real established practice. It is a task he would have undertaken so infrequently and in the very limited time he had to undertake administrative duties. Sometimes, he would therefore send off a quick email with some patient details, possibly only after treatment had taken place in the form of his “invoice”. On other occasions he would have more time to fill in a proper patient registration form. The latter occasions would be most likely to fall on quieter times, perhaps on short returns to work between periods of annual leave, or on return from a longer break where he would not yet be undertaking any complex treatment. Precisely the sort of occasion as mid- to-late August 2022, when he said he prepared a hand-written form.[85]Secondly, as the Claimant himself did not have private practising privileges, I was distinctly unclear how the TrustPlus team would have been able to register Patient X as being under the Claimant’s responsibility (or indeed under the Surgeon’s name, as he also did not have such practising privileges). Of course, this could support the Respondent’s case that the form was never delivered. It would also be possible that, for instance, a junior member of the reception team had noticed this difficulty, was unsure exactly what to do and left the registration form it to one side to seek advice. Or perhaps whoever received it was awaiting contact from the consultant themself, who would normally be the person filing the registration form and in whose care Patient X would have been registered, especially as the Surgeon was not the consultant with whom the Claimant ordinarily undertook private treatment. It is unfortunately often the nature of such things that, if they get placed to one side, they then risk being misplaced or accidentally discarded without trace.[86]The Claimant then commenced treatment of Patient X on 5 September 2022, lasting until October due to a delay in the Surgeon’s colleague ordering and obtaining the necessary components. I accepted the Claimant’s evidence that all components were ordered and paid for by the Surgeon. That is what he said and the Respondent presented no evidence of missing stock or unexplained orders having been placed by the Claimant.[87]The installation of the overdenture went smoothly. The Claimant would have expected Patient X to attend some follow-up appointments with the Surgeon, but had no details about that. The Claimant was then informed by the Surgeon in February 2023 that Patient X was unhappy with the treatment. It is irrelevant to these proceedings what happened next in respect of Patient X’s healthcare, but I understand that some alternative treatment was sought. In light of the complaint, the Claimant chose not to charge for his time and did not send an “invoice” to TrustPlus for payment. The investigation[88]In or around late-May or very early-June 2023, Patient X and/or their spouse escalated their complaint about the Surgeon and the Claimant’s treatment. The Surgeon had been in touch with a consultant employed by the Respondent with whom the Claimant frequently worked. The Claimant was informed. In parallel, a complaint was made to the Respondent’s Patient Advice and Liaison Service (“PALS”) on 30 May 2023, which does not appear to have been progressed very far.[89]In July 2023, Patient X and/or their spouse complained to their then-constituency MP, Sajid Javid, former Health Secretary. On 8 August 2023, he wrote to the Chief Executive Officer (“CEO”) of the Respondent to pass on the complaint. Perhaps unsurprisingly she circulated the complaint internally, which resulted in the investigation and subsequent dismissal of the Claimant.[90]I shall not refer at any length to the nature of either Mr Javid or the CEO’s involvement. A suggestion at the hearing was that their involvement may have negatively affected the outcome of the Claimant’s disciplinary investigation. If it did, it would only have been due to individuals involved in the process feeling under pressure simply due to the origin of the complaint. There was nothing at all obviously untoward in any of the exchanges.[91]It seems to me that Mr Javid was diligently performing his role of constituency MP by informing the CEO of a potentially serious matter raised by one of his constituents. Presumably he knew her from his previous role as Health Secretary. His message did not appear in any way to be seeking any particular outcome other than assistance in responding to his constituent’s concerns.[92]The CEO circulated the email to senior colleagues, as you would expect. It is hard to conceive what else would she would have done. Again, as you might expect, the senior leadership team sought to rapidly investigate the matter. A senior manager in the Claimant’s department was informed as was the Respondent’s human resources department. A senior human resources advisor was nominated to assist with the investigation (the “HR Advisor”).[93]The senior manager met with the Claimant the same day and asked him to go home for a day to prepare a report about Patient X’s treatment. By this point, several senior leaders believed the Claimant had been suspended or should have been. The HR Advisor wrote an email to the Claimant’s line manager on 10 August 2023 at 11:09 to enquire whether supervision could be a suitable alternative. The deputy chief people officer appears to have thought not and requested the Claimant be suspended in an email timed 12:09. This decision was confirmed at 13:08.[94]The Claimant provided his report at 13:35. He was invited to a video meeting at 4pm, at which he was unaccompanied. He was suspended, with a confirmation letter being sent by email at 00:38 the next morning. The allegation for which he was being investigated was recorded as follows: “You saw a private patient on NHS property & provided clinical service to the patient without registering the patient with TrustPlus. You also tried to invoice the patient which you then rescinded. The patient has complained regarding the care they have received and being made to believe that you were a registered dentist.”[95]A statement was requested by 23 August 2023. At the meeting, the Claimant had told his line manager that he did not say he was a dentist and had not invoiced for the treatment. As he felt he had responded to everything he could (not having any details about the alleged deficiencies in his treatment), he did not feel any further response was needed. The Claimant had had a period of pre-booked annual leave corresponding very closely to his suspension – 14-21 August and again 23-28 August. His line manager attempted to call him on 24 August. On that date, a letter was also sent to the Claimant informing him that an investigation had been commissioned into the allegations. He was informed he would be invited to an interview.[96]Due to the HR Advisor’s annual leave, little happened until 5 September. An interview with the Claimant was scheduled for 21 September. The Claimant’s line manager left him a voicemail on 7 September. A colleague who worked in radiology, with no knowledge of the Claimant’s work, was appointed to the role of “Investigation Officer”. The investigation progressed slowly.[97]The Claimant had little effective contact with anybody at the Respondent, save from one call with a consultant in early September and suspension renewal letters and limited correspondence concerning the investigation.[98]The investigation was not handled in the usual way when a complaint is made to the Respondent. Typically, as one might expect, patient complaints are considered and handled by a specific complaints team. This is expressly provided for in section 5.16 of the Private Patients Policy. Accordingly, when Patient X sought an update on their complaint from the CEO on 3 October 2023, her office directed the request to the complaints team. In this case, however, the complaint was taken as forming the basis of a disciplinary investigation. The matter was aptly described by the complaints team on replying to the CEO’s office as follows: “Due to the nature of this case and the sensitivity around it, I understood that it was being investigated outside of the formal complaints route as there are HR implications to investigation findings.”[99]The Claimant’s line manager was copied in to that exchange and responded: “Yes, we are formally investigating through the Trust disciplinary procedure. I will check with HR if we can include the complaint submitted as part of evidence for it so that we can provide an appropriate response?”[100]She also asked the HR Advisor whether the Investigation Officer could contact Patient X to discuss her complaint. The HR Advisor said that the complaint could be submitted as evidence, but that “when we are carrying out an internal investigation we don't interview patients as part of the process”. She said that written evidence, such as invoices and appointment letters, could be requested via the complaints team. The Investigation Officer asked the complaints team for the appropriate contact and was informed that there was none as the complaint was being handled exclusively via the disciplinary investigation. As the complaint team was not conducting an investigation, it would not contact Patient X.[101]The HR Advisor said she could try to contact Patient X via the CEO’s office instead. She sent a draft list of questions to the HR Advisor on 6 October for comment. Before she received a reply, Patient X’s spouse sent a follow-up email to the CEO on 7 October including some further information. It recorded that: “On three occasions supporting staff attempted to get involved but were told they were not necessary”.[102]On 10 October, the Investigation Officer sought an extension of time to render her report, saying: “I also needed to wait for permission from HR before I could approach the patient’s partner (through [CEO’s office]) to answer some questions I would like to wait for these answers as I think they will be important to the investigation”. Two of those questions were:(1) “If they still have a copy of the invoice for £15,000 pounds that they were sent and could they provide a copy please? If not then could they please inform us as to who sent them the invoice and on what date?” and(2) “If they could provide any evidence of the claim by the 2nd option [sic] they obtained that the treatment the patient received here was out of date?”.[103]Separately, later the same day, the CEO herself then provided a version of the complaint that I will quote below, asking for the “questions and points” raised to be made clear to the investigation. The email was directly forwarded on to the HR Advisor and Investigation Officer.[104]It seems that in light of this information, the HR Advisor’s failure to respond to the Investigation Officer’s draft questions and time pressure, the Investigation Officer apparently chose not to pursue any questions of Patient X, despite her believing they were important.[105]During the investigation, further questions were asked of the Claimant. The Investigation Officer undertook three interviews with some of his colleagues. One was with a very junior colleague who worked in the Claimant’s laboratory on different types of work. Perhaps unsurprisingly, she had nothing useful to say. Another was with a service manager in the Claimant’s department who could add very little. The third was with the TrustPlus finance manager, who provided some useful information. I have explained what he said above. In summary, his input was that the Respondent’s private patient protocols were decidedly diverse and flexible. Sometimes patients would be registered in advance of treatment, other times they wouldn’t. The process was monitored largely at a departmental level, certainly as far as the Claimant was concerned.[106]On the day of his interview, the Claimant requested a copy of the allegations concerning his treatment of Patient X and copies of the policies he was alleged to have breached. He was provided only with a copy of the investigation policy and was informed he could provide a written statement instead of attending an interview. He chose to do so by giving short responses to the allegations on 25 September, providing a copy of the Surgeon’s prescription. In relation to invoicing, he wrote: “No invoice was sent to the patient directly. A quote was made for the whole treatment (surgical and prosthetic rehabilitation) by the referring Consultant Oral Maxillofacial Surgeon to the insurance company”.[107]This was interpreted by the Investigation Officer to mean: “Christopher White states he did not invoice the patient, he invoiced the Consultant who invoiced the patient’s insurance company”. This interpretation was incorrect; the Claimant never said that he invoiced anybody.[108]The Investigation Officer remained of this understanding, as is clear from an email dated 11 October at 13:53: “Given that CW supposedly sent the invoice to Luke Cascarini directly why would Trust plus be involved? They would only need to be involved if Chris White expected to be paid through Trustplus and I don’t think this is the case as normally Trust plus sends the invoices for work done If CW had submitted his invoice to Trust plus instead of Luke Cascarini that would have been a different story”. The “different story” is exactly what the Claimant said would have happened (had he submitted an invoice at all). Interestingly, the question of invoicing was precisely one on which the Investigation Officer had been keen to seek clarification from Patient X, without actually doing so.[109]In relation to the Private Patient Policy that he had requested, the Respondent now accepts that it should have provided him with a copy and I would encourage it to do so on any future occasion a similar request is made.[110]The Claimant did not attend a re-scheduled interview. Instead, on 6 October, he provided written responses to a list of further questions the Investigation Officer had intended on asking him.[111]An investigation report was initially produced on 25 October, but was found to lack clarity and had to be revised. From 11 October, the Investigation Officer had been acutely aware that the CEO had some knowledge of the investigation and felt under considerable pressure due to that. In an email that day she wrote: “Seeing as [the CEO] is now involved I am feeling the pressure to do a good job”. On 20 October she indicated to the HR Advisor she was “panicking a bit”.[112]Throughout the investigation, there was much uncertainty in both the Investigation Officer’s and HR Advisor’s minds, about how private treatment was conducted at the Hospital. Various questions were still being asked about the applicable processes into early November, two months after the investigation properly began. On 2 November, the Director of Private Patients emailed the HR Advisor to say that the Claimant did not have private practising privileges and was a technician, not a clinician. On 9 November the HR Advisor noted that she could not see where the Policy provided that the Claimant could not conduct treatment on referral from the Surgeon. She was referred to sections 3.15 and 3.16 of the Policy and determined that one of the allegations needed to be amended to reflect the Surgeon’s lack of private practising privileges. This recognised for the first time that the Surgeon’s lack of private practising privileges was an issue.[113]The final investigation report was produced on 22 November 2023.[114]An investigation does not need to be undertaken to an exacting standard and an employer benefits from a great deal of discretion in relation to exactly how it decides to undertake it. The Respondent accepted that there were numerous ways in which the process could have been improved. Various aspects of the investigation would have been performed differently in hindsight. No doubt the points that were made and conceded will be taken into account in future investigations. I will address this matter again in my conclusions.[115]The report produced by the Investigation Officer proceeded largely on the basis that Patient X’s complaints were accurate. A copy of the follow-up complaint sent to the CEO (that I have referred to above) was provided in the body of the investigation report as follows: “I attended NWP hospital on six occasions for extensive reconstruction procedures. The work was carried out in the maxillofacial department on the 5th floor by a gentleman called Christopher White, known as Chris White. We were told he was working directly for [the Surgeon] based at the Harley Street specialist hospital, was Mr White being paid privately for the work and if so why was he doing it in nhs time with Nhs equipment? When we arrived he always met us at the stairs and took us through to a small what seemed like a store room to treat us he never let another staff be present, the receptionists didn’t even know we were there. Why did he never have another member of staff such as a nurse with him and why was I not reviewed in a proper treatment room We were then informed Mr. White had submitted a claim for £15,000 to [the Surgeon] but had withdrawn it, we were never given a reason.Recently the consultant [the Surgeon] offered us an unspecified amount of money as compensation for the numerous visits we made to London, we decided not to accept this. The condition of accepting the money offered was to sign a document. The reason for this was he explained “You will not come after me in the future”. Who paid for Mr. White services carried out at an NHS hospital? Why were no records kept for my [partner]'s treatment at Northwick Park Hospital? Aviva have received no claim for payments for work carried out. Why does Northwick park let clinicians do private work in NHS time is this not Fraud and the trust liable for by incorrect and neglectful care or is Mr White? All the work carried out at Northwick Park Hospital has been removed as the method used was described by a second opinion as virtually obsolete in the UK My [partner] has now transferred to a consultant named AF at the Cromwell Hospital in London. On the 12th of July [they] underwent the first surgery in a series of four that have been planned in the near future to attempt to rectify [their] facial disfigurement.”[116]Despite having had important questions for them, no documents or further information or a meeting with Patient X had been requested or arranged to discuss their concerns. No clear warnings were given in the investigation report that the nature of many of the complaints had neither been investigated nor established, such as(1) the important matter of the alleged sub-standard nature of the treatment,(2) the Claimant’s precise role (if any) in its choice,(3) the alleged location of treatment in a “store room”,(4) what Patient X or their spouse knew about the cost of treatment and the payment arrangements. All the report said on the matter was that the medical advice allegedly indicating Patient X’s treatment had been sub-standard had not been seen, nor had the invoice “that was submitted and withdrawn” (the statement assumed it had existed). Patient X’s comments were consistently labelled as “useful”, whereas the Claimant’s attitude and input were consistently recorded as “reluctant” or “very reluctant to comply with the investigation”, “brief” and “evasive”. The initial and most detailed account of the events the Claimant had provided in early August both in writing and orally to his line manager was not referred to in the report.[117]The Investigation Officer determined that there was a disciplinary case to answer, which was accepted. Her conclusion was as follows: “CW knowingly provided treatment to a private patient referred by a GDC registered clinician outside the Trust, which is against Trust policy as Mr LC had not retained his practising privileges here (Appendix 23). CW did not ensure the patient was registered with Trustplus on any of the multiple visits they made which is against the Trust’s Private Patient policy, (Appendix 24). CW did not ensure TrustPlus raised an invoice for the treatment provided by him so that the hospital would get paid for use of its resources. This is against the Trust’s Private Patient policy. There is circumstantial evidence that CW attempted to conceal the treatment of the patient as no one had any encounters with the patient at this Trust apart from himself. The patient had complained of being seen in a room resembling a storeroom which suggests they were not seen in the rooms where his normal clinic is conducted. CW was also very reluctant to comply with the investigation, he did not agree to be interviewed and the replies he provided to the questions emailed to him were brief and evasive. CW has not demonstrated the Trust values of openness and transparency.”[118]The report gave four recommendations, two of which were predicated on the lack of clarity surrounding the protocol(s) to follow in the treatment of private patients. Firstly, that a standard departmental operating procedure regarding the treatment of private patients be established in the Claimant’s department. Secondly, “Clarity in the Private Patient policy about the role of non-medical consultants in providing care to Private patients and whether they have independent practising privileges”.[119]A disciplinary hearing was arranged. The Investigation Officer was asked to prepare a summary of the case. The first draft of that showed that the origin of the complaint was uppermost in the Investigation Officer’s mind. She recorded the involvement of an MP and the CEO in the introductory paragraphs.[120]Her conclusions were remarkable and deserve to be recorded in full (underlining has been added to show which sentences were thereafter deleted). “During this investigation I could not ignore the clandestine nature of this patient being seen. CW has admitted he was aware [the Surgeon] no longer worked for this Trust, therefore this patient should not have been seen. The patient was not registered with Trust plus on any of their visits which is suspicious. The patient’s partner commented on the surreptitious route and the fact that they did not encounter anyone on their visits. “Backstairs and being seen in a room like a storeroom.” [One of the junior interviewees] commented on how CW would arrive to work late and stay late but had no knowledge of what he did after hours. There was a lack of oversight into CW’s activities, so he seemed to come and go as he pleased. The patient mysteriously received a bill for £15,000 however this cannot have been the brainchild of the clinician alone if CW expected to be paid too. I could not establish if CW made any records on the treatment given to the patient and finally there was very limited cooperation from CW and half answers. This behaviour is against the HEART values of the trust of openness and honesty. My investigation had led me to conclude that the trust would have been none the wiser about treating this patient if the patient had not been dissatisfied and chosen to complain about the service they received and I believe CW was motivated by greed when he agreed to see this patient.”[121]It is fair to say that the investigation report was not prepared in as strident terms, but the view the Investigation Officer had formed during her investigation became abundantly clear. This would clearly have affected her assessment of the evidence and the recording of the Claimant’s attitude. That much is clear. Very sensibly the HR Advisor suggested the Investigation Officer focus on the facts rather than her opinions. She suggested the Investigation Officer remove a few of the most damning sentences (which I have underlined above).[122]The disciplinary hearing was then arranged for 19 December 2023. The Claimant did not attend. He sent a fit note dated 15 December indicating that he was not fit for work by post to the Respondent, but not until around 4:25pm on 18 December. The disciplinary hearing was scheduled for 9.30am the next day. Even if the fit note had been sent by the most express delivery method possible, it plainly would not have been received by the appropriate people at the Respondent prior to the disciplinary hearing.[123]The fit note recorded stress at work. The Claimant indicated at the hearing that the nature of, lack of clarity in, and the length of the disciplinary process had had a very significant impact on his mental health and anxiety. As time went by, he had been less and less able to participate effectively in the disciplinary process. I needn’t make a finding on this matter.[124]As the disciplinary panel was not aware of the Claimant’s fit note, the hearing took place in his absence. The Investigation Officer presented her view of the case. Only very limited questions were asked of her.[125]Before considering its decision, the hearing chair (who became the “Dismissing Officer”) was told by the Respondent’s Head of Employee Relations (the “Head of HR”) that a finding of gross misconduct and summary dismissal would be consistent with recent disciplinary cases of which she was aware. The Head gave no details of those allegedly comparable cases to the Dismissing Officer, but helpfully she did so at the hearing before me. The details of those matters were as follows. 125.1. The first was a failure by an employee to disclose to the Respondent that they were being investigated by the police for a serious criminal matter. The individual was dismissed with notice, indicating that this was considered “misconduct” rather than “gross misconduct”. 125.2. The second related to a failure of an employee to renew their requisite professional registration. This was undoubtedly a serious matter impacting on that individual’s entitlement to practice, raising potential regulatory concerns for the Respondent. 125.3. The third related to inappropriate behaviour between a healthcare professional and a patient, which I understood to be physical assault.[126]A summary list of disciplinary sanctions imposed by the Respondent in 2023 was provided to me at the hearing. The only summary dismissals were the second and third cases referred to above. Various final written warnings had been given for breach of confidentiality and intimidating behaviour. Dismissals on notice had been given for professional sanctions, breach of confidentiality, failure to disclose, physical assault and unprofessional conduct.[127]The Dismissing Officer accepted the disciplinary case that had been presented to him. He found the following two allegations to be proven: 127.1. “You saw [Patient X privately] on NHS property on 6 occasions & provided clinical service to the patient without registering the patient with TrustPlus, in line with Trustplus & LNWUH policies and procedures”; and 127.2. “You carried out clinical procedures on [Patient X privately] without a valid prescription, provided by a GDC- registered clinician who is not a Trust employee and does not have practising privileges with the Trust and therefore you acted outside the remit of your role”.[128]The Claimant’s actions were deemed gross misconduct and the Dismissing Officer decided the appropriate sanction to be summary dismissal. He sent a dismissal letter on 27 December 2023, which contained little real reasoning. The Dismissing Officer’s evidence at the hearing was therefore both important and insightful. He said that he had formed a view that the Claimant had acted intentionally in breach of the Private Patient Policy by meaningfully choosing to treat a patient surreptitiously in the Hospital, without informing the Respondent, for personal financial gain. I have no doubt that this fairly reflected the Investigation Officer’s presentation of the case, as demonstrated in her initial statement of case that I have referred to above. That presentation is also reflected in the note taken of the disciplinary hearing.[129]Of particular relevance, the Dismissing Officer said that he had reached that view for several reasons. Firstly, that the Claimant was a senior employee who should be aware of the Respondent’s policies and procedures. In this respect, his written statement recorded that: “As a clinician, Mr White was under an obligation to comply with the Private Patient Policy and to ensure that he followed the Trust’s record-keeping policies and procedures”.[130]Secondly, that he had provided treatment without a valid prescription from an appropriate consultant. In this respect, he wrote in his statement of the importance of a consultant having practising privileges and accepting responsibility for a patient.[131]Thirdly, he had significant concerns about the Claimant’s lack of record-keeping. It is worth noting that the Dismissing Officer was Director of Nursing, professionally accountable for all nurses and midwifes working at the Hospital at the time. Nurses are clinicians, in the sense that they treat patients daily, and a significant part of their role involves note-taking and ensuring an accurate record of a patient’s care. He believed that record-keeping was a significant part of the Claimant’s professional duties also. He noted section 5.5 of the Private Patient Policy in that regard. He believed there were no records of Patient X’s treatment. He considered this to be a very serious matter, with “such serious implications on patient safety”.[132]He believed that the Claimant had known that he should not have accepted the Surgeon’s referral but did so regardless. In part, he made that finding on the basis of his experience as a nurse, stating that when he performed any treatment he would check he was operating under an appropriate doctor’s instruction.[133]As to the Claimant’s experience, he said that he was not aware that private treatment was a very minor part of the Claimant’s work. He wrote in his statement that the Claimant “was aware of the correct process to register private patients via TrustPlus as he had previously done so”. He noted that section 5.10 of the Private Patient Policy required him to do so.[134]As the Claimant had been declared unfit for work and had been advised by his GP to take the Christmas period off work, he did not check his work emails. He therefore did not receive the dismissal letter sent to him on 27 December 2023. When he attempted to open his emails in early January 2024, he realised that he no longer had access to his emails. He arranged for access to be restored.[135]In the meantime, he had engaged a solicitor to write to the Respondent on 22 January 2024 requesting an update on his suspension and an estimated timeframe for a final decision to be made. Clearly he had not received the dismissal letter at this point. This letter was sent to the Head of HR the same day.[136]Upon then obtaining access to his emails, the Claimant realised he had been dismissed. He contacted his GP for a letter explaining why he had not been able to attend the disciplinary hearing. Upon receipt of the letter on 29 January 2024, he lodged an appeal on 30 January 2024, accompanied by the GP’s letter. The letter referred to him having not being able to attend the hearing because of his mental health and that he had been found to be unfit for work until March 2024. He ticked the ground of appeal was that the decision was “unfair and unreasonable”. He provided no additional details.[137]The Head of HR summarily rejected that appeal on the basis that: “As your appeal email was sent on 31 January, and also doesn’t contain specific details of your grounds of appeal, you [sic] appeal is not in time and doesn’t meet the requirements under the disciplinary and dismissals appeals policy in order for it to be valid.”The issues
[138]As to the issues that I have to address, they were as follows. Unfair dismissal[139]The first issue is to consider the reason for the Claimant’s dismissal. In this case the parties agree that it was misconduct.[140]The next issue is whether the Respondent acted reasonably or unreasonably in all the circumstances in treating the Claimant’s conduct as a sufficient reason for his dismissal. That analysis involves considering whether: 140.1. the Respondent had formed a genuine belief, on reasonable grounds, of the misconduct and that it was sufficient to justify the Claimant’s dismissal; 140.2. at the time the belief was formed, the Respondent had carried out a reasonable investigation into the Claimant’s alleged misconduct; 140.3. the Respondent had otherwise acted in a procedurally fair manner during the process leading up to the Claimant’s dismissal; and 140.4. the dismissal was in the range of reasonable responses to the alleged misconduct. Wrongful dismissal[141]In relation to the wrongful dismissal claim, the issue for me to determine is whether the Claimant’s conduct constituted a repudiatory or fundamental breach of his employment contract such as to entitle the Respondent to dismiss the Claimant summarily (without notice).[142]There is clearly a different emphasis to my analysis in each case. In relation to the unfair dismissal claim, I must investigate the decision-making processes employed by the Respondent, assessing whether any particular step or decision taken was reasonable. It is not my task to consider or make findings as to what I believe the most appropriate action at any point may have been. As an employer, the Respondent is afforded a wide margin of discretion as to how it wishes to conduct its business and the Tribunal will respect that.[143]In relation to the wrongful dismissal case, I must make an objective assessment of the facts and determine as a matter of fact and law whether the Claimant committed a repudiatory breach of contract, including of the implied term of mutual trust and confidence that exists in every employment contract. Selfevidently, this decision requires me to consider the context of the particular employment contract that existed between the parties. Conclusions Unfair dismissalConclusions
[144]The Claimant was dismissed for gross misconduct. He accepts in hindsight that he made a mistake in treating Patient X on the Surgeon’s referral and that that might be considered misconduct. He disputes that it amounted to gross misconduct and that dismissal was an appropriate response to it. Issue 1: genuine belief based on reasonable grounds?[145]The first issue for me to consider is whether the Respondent formed a genuine belief, on reasonable grounds, that the Claimant’s actions amounted to gross misconduct.[146]There is no real doubt that the Respondent’s belief was genuine. It found that the Claimant had intentionally acted in breach of the Private Patient Policy for financial gain at the Respondent’s expense. The Dismissing Officer was very forthright and clear about the view he had formed. The question for me, and the question that is critical to this case, is whether that belief was founded on reasonable grounds. If it was, I could see little good argument that the Respondent would not be entitled to consider the Claimant’s actions gross misconduct.[147]In order to be possessed of reasonable grounds for the belief, the Dismissing Officer must have taken into account all matters that he should reasonably have considered material to his decision, whilst ignoring those that were irrelevant. In saying that, I recognise of course that the Respondent is not expected to conduct an exhaustive or exemplary decision-making exercise, only one that is reasonable.[148]In all cases (as this particular case amply demonstrates) an employer must have some form of clarity about the nature and requirements of an employee’s role before determining that they have fallen so far short of the expected standards for that role that they should be summarily dismissed. Additionally, in this case, the nature and practical implementation of the Policy and its relevance and/or application to the Claimant and his role was equally crucial. The two matters are intertwined. This issue is so important in this case because the Claimant was dismissed directly because of a finding that he intentionally acted in contravention of the Policy and many of his actions (or omissions) were gauged against its requirements.[149]Unfortunately, in my judgment, nobody involved in the investigation of, or decision to dismiss, the Claimant had truly grappled with either matter. Even the Director of Private Patients gave a rather confused account of the Claimant’s role and whether he should be considered a “clinician” for the purposes of the Policy despite not being eligible for private practising privileges.[150]Of more direct relevance, the Investigation Officer never properly engaged with either matter and was still asking questions about the Hospital’s private operations weeks beyond the initial deadline for returning her report (and weeks beyond feeling under significant pressure to do a “good job” because of the CEO’s involvement). Neither matter was straightforward and she did not receive much assistance on either during her investigation. She herself was a radiologist with no knowledge of the Claimant’s role or how his department operated. Even if she had some knowledge of how private radiology referrals were handled, the TrustPlus finance manager had stated that the radiology department had its own arrangements and protocols, so whatever knowledge the Investigation Officer had would not have been directly relevant. The only colleague she interviewed with any knowledge of the issues was the TrustPlus finance manager. His input was clearly helpful from a management perspective and he recognised that the Claimant was a technician that invariably worked for a referring consultant. However, he knew very little detail about the Claimant’s role and how he actually conducted his work. He gave an overview of how the private patient business at the Hospital operates very flexibly, with little uniformity, and relies on employees and departmental managers in order to work effectively (including in the Claimant’s department). It was not surprising that the Investigation Officer made the recommendation that the policy and protocols should be clarified.[151]In light of the finance manager’s comments, the obvious people of whom to ask questions about the Claimant’s work and departmental protocols were the consultant with whom the Claimant performed almost all his private treatment and/or his secretary. For reasons that I do not understand, neither were asked for their input on how private patients are treated on a practical level in the Claimant’s department. It is possible that many of the fundamental issues in this case would have been clarified if they had been asked. I will come on to discuss whether it was reasonable not to have asked those questions of these individuals later.[152]Despite the finance manager’s information being the most helpful information available to her, the Investigation Officer failed to properly take it into account. He was clear that the TrustPlus process was consultant-led and involved consultants (or their secretaries) referring up details of private patients. He was clear that the Claimant was a technician. Admittedly the details about whether the Claimant registered patients with TrustPlus as well as providing “invoices” after the treatment was not very clear. However, in the context of consultant-led referrals it was certainly clear enough that the main responsibility for that would reside with the consultant.[153]The Investigation Officer recommended in the investigation report that “Clarity in the Private Patient policy about the role of non-medical consultants in providing care to Private patients and whether they have independent practising privileges” should be provided. The reality is that no such clarity was required on that particular issue – for the purposes of the Policy, the Claimant was not a “clinician” and was not eligible for private practising privileges. She failed to properly understand or consider the nature of his role, assuming that he could be eligible for private practising privileges at all. This led to her failing to grapple with what his status meant for the purposes of the Policy. She recorded that the Claimant failed to ensure Patient X was registered with TrustPlus, without considering whether that was his responsibility. She also failed to consider whether he would or should have had knowledge of the Surgeon’s private practising privileges and, if so, why. As it took her and the HR Advisor over two months to understand the importance of this matter despite undertaking a thorough investigation, it is difficult to see how she could reasonably have expected the Claimant to understand its importance especially considering this may have been the first time he had acted on an external referral.[154]As to the Dismissing Officer, this lack of clarity in relation to both the Claimant’s work and the application of the Policy to him was of great significance. As I have just explained, he was given very little assistance from the Investigation Officer or her report. It was clear from the evidence he presented at the hearing that he determined the Claimant had committed gross misconduct on the basis he was a clinician (rather than a technician), with significant record-keeping duties (similar to those of a nurse), who should have been aware of and directly applying the Policy. Each premise was demonstrably wrong.[155]Firstly, the Claimant was primarily a technician, not a clinician (although the nature of his role requires him to treat patients directly). Correctly interpreted, as explained above, the reference to “clinicians” in the Policy predominantly means consultants, although it does encompass treating clinicians. It is not directed at other staff, such as the Claimant, even if they can be assumed to be aware of some of the general principles.[156]Secondly, the Claimant was under no obvious record-keeping duties under the Policy. Section 5.5 specifically applies to the referring consultant and requests that notes are kept “within one records folder”. Perhaps almost instinctively the Dismissing Officer felt that comprehensive records of treatment should be kept by the Claimant himself, perhaps noting the Claimant’s job description and the general requirements of his role as recorded by the Institute of Maxillofacial Prosthetists and Technologists Scope of Practice, both of which refer to notemaking. But making copious notes is not the Claimant’s established practice. I was not referred to that ever having been raised with him as a concern (let alone as a serious healthcare risk). It is not the case that no records were made by the Claimant. He may have prepared some handwritten notes, he certainly took photos and sent them to the Surgeon. The prescription described what he was tasked to do. He recorded he had done as asked. As he maintained responsibility for Patient X’s treatment throughout, the Surgeon would have been primarily responsible for Patient X’s medical file. Not only is that the general principle in the Claimant’s work, but also specifically encouraged by the Policy. Nobody at the Respondent requested a copy of Patient X’s medical notes from the Surgeon. Before presuming that a failure to keep detailed written records was a very serious issue, it needed to be objectively established. The Dismissing Officer reached that view not after a proper analysis of the Claimant’s practices and responsibilities, but calling on his own experience as a nurse and relying on section 5.5 of the Policy. Both were irrelevant as the Claimant is neither a nurse, nor concerned by section 5.5, which in terms states that it applies to ”consultant staff”. On a slightly different point to which I will return, poor record-keeping was not part of the allegations the Claimant faced, which may explain why no better information was available about the matter. The Policy states in section 3.10 that it is for the consultant to ensure that professional standards of medical care are met. The Surgeon has not made any complaints about the Claimant’s recordkeeping falling below the professional standards of care he expected.[157]Thirdly and finally, there are two points to make. Firstly, the Policy applies directly only to consultants/treating clinicians, not technicians (as explained above) so there is no reason why the Claimant should be expected to be familiar with it. Secondly, the Claimant was not significantly involved in the treatment of private patients; it was a very minor part of his work. Therefore, in formulating his view of the Claimant’s conduct, it was unreasonable and distinctly unfair of the Dismissing Officer to proceed on the basis that the Claimant was both directly concerned by, and should have been aware of, the details of the Policy. It was for the Respondent, via the Policy, to inform the Claimant of his responsibilities and in truth it provided him with very little, if any, useful guidance.[158]Accordingly, the main foundations supporting the Dismissing Officer’s decision were defective. In my judgment, this is a prime example of a genuine belief having been formulated on decidedly unreasonable grounds. The Claimant’s actions were judged against the conduct expected of a consultant, with reference to a Policy that is primarily directed at consultants, when he is not a consultant, but a technician. The Policy gives technicians very little guidance about their responsibilities.[159]In fairness to the Dismissing Officer, he was somewhat led down this track by the framing of the allegations. The first that was upheld was that the Claimant had “provided clinical service to the patient without registering the patient with TrustPlus”. That may or may not be accurate, but the investigation report fails to record that it is not primarily the Claimant’s responsibility under the Policy to do so. The same considerations apply to the second allegation that was upheld: “You carried out clinical procedures on [Patient X privately] without a valid prescription, provided by a GDC- registered clinician who is not a Trust employee and does not have practising privileges with the Trust and therefore you acted outside the remit of your role”. The statement was (partly) accurate (there was nothing inherently “invalid” about the prescription). But nothing in the Policy states that it is the Claimant’s responsibility to check whether the Surgeon had private practising privileges at the Hospital. That was a matter for TrustPlus to consider on receipt of the Surgeon’s referral, which the Surgeon should have made directly to TrustPlus. Again, the investigation report made no mention of this not obviously being the Claimant’s responsibility under the Policy. In accordance with the Policy, it was clearly the Surgeon’s responsibility to have approached TrustPlus to seek the Respondent’s approval to using the Claimant’s services, rather than to approach the Claimant directly.[160]In my judgment, it was not only the Respondent’s belief of gross misconduct that was not founded on reasonable grounds. It was also its belief about whether or not the Claimant did in fact attempt to register Patient X with TrustPlus. That finding would also have been tainted by these errors, including because the Dismissing Officer presupposed the Claimant to be more appraised of the requirements with regards to private patient registration than he was. It is far easier to conclude an employee has intentionally subverted a policy if they are assumed to have detailed knowledge of it. If the Respondent had appreciated that, on proper analysis, registration was never the Claimant’s responsibility and he undertook only limited private work, it may have formed a different view of the facts.[161]In my judgment, these significant misunderstandings about the Claimant are fundamental. In assessing whether the Respondent might in any event have reached the same conclusions, I can place very little weight on the decision that was made. Conceivably the Respondent might reasonably have determined the Claimant had intentionally sought to deceive the Respondent by purposefully treating Patient X surreptitiously at the Hospital without informing TrustPlus. I can see that potentially could be considered gross misconduct. It would be inherently deceitful conduct.[162]However, as I will now explain, there were also separate deficiencies in the reasoning supporting the Dismissing Officer’s conclusions as to the Claimant’s intentions. He was permitted to treat private patients outside his normal working hours, within the Hospital, and his employment contract does not prevent him holding alternative employment. The Surgeon had the necessary insurance in place and was clinically responsible for Patient X. No investigation was done into whether the Claimant used components purchased by the Respondent (at the hearing, I accepted that he did not). The only obvious “cost” to the Respondent of Patient X’s treatment that it could identify at the hearing was for the usage of the Claimant’s treatment room/laboratory and consumables such as disposable gloves and perhaps whatever solder or compounds the Claimant might have used in fabricating Patient X’s overdenture. I can add that it also lost any charge it makes for the Claimant’s services above those passed on to him. Of course, it is the principle behind deceitful conduct that might be considered most serious, rather than any possible direct financial loss to the Respondent (no matter how minimal that might have been).[163]Nevertheless, it is important to dwell on this matter. When one objectively analyses the situation, I rather fail to see what in particular the Claimant would have sought to gain from any deceit. If he had been truly motivated by “greed” as the Respondent submitted, why did he not simply agree to treat Patient X at the Surgeon’s place of work on Harley Street, for a sizeable fee, irrespective of the overall success of the treatment? The only matter about which he was potentially “defrauding” the Respondent was for the use of its facilities, consumables and its fee for permitting the Surgeon/Patient X to use the Claimant’s services. It would seem peculiar to risk an entire career for what are presumably not especially significant sums, when he could have obtained his fee at far lower risk, including at lower risk of discovery by conducting the treatment far from the Hospital.[164]The Dismissing Officer seems to have formed his view on the basis that the Claimant was obliged only to work for the Respondent and was unable to provide private treatment otherwise. However, consultants do not operate in that way, and they are the people against whom his actions were gauged. I am not sure on what basis he made his assessment. Before making such a serious finding, the Dismissing Officer had to properly consider the real financial ramifications of the Claimant’s alleged actions and, in that context, the real likelihood of the Claimant having been motivated by greed. I found that he did not, so this is an additional reason for which I conclude that the Respondent’s genuine belief in the Claimant’s duplicitous conduct was not formulated on reasonable grounds.[165]Had the Dismissing Officer taken proper account of all these factors, I simply cannot conclude that he would have reached the same decision. I think it is more likely he would not have.[166]The Claimant has accepted in hindsight that accepting the referral could be considered misconduct. I needn’t reach a firm view on this. Nevertheless, I note that the Policy in general terms requires staff to be aware of the need to register treatment given to private patients. The Claimant was aware of that and has not suggested otherwise. However, he was not aware of the precise mechanics to patient registration, nor need he have been. It is not a process in which he is normally expected to be directly involved. He realised in this case that registration would be appropriate, which is why he attempted to do so. He has never denied he should have done so. However, the extent of his knowledge of the process was to send summary patient details to TrustPlus (on initial registration and/or via “invoice”). TrustPlus would handle everything else. The Claimant would never have had to be involved in providing any further details to, or liaising further with, TrustPlus. That would be the consultant’s (or their secretary’s) role. No doubt he would have been better advised to have asked the Surgeon to conduct the registration in this case. Whoever did it, had the registration been received and processed by TrustPlus, no doubt the Surgeon’s status would have been investigated before the treatment took place in any event.[167]In circumstances where it is accepted by the Respondent and well-established that the Claimant receives referrals directly from consultants, it seems to me what happened in this case was bound to happen at some point. A previous colleague, knowing of the Claimant’s skills and perhaps having referred patients directly to him in the past, might refer matters directly to him again in future, in much the same way as the Surgeon did. Without the Claimant being made aware of any particular responsibility to check the practising privileges of the referring consultant, and with no particular departmental protocol on the matter, why would he refuse the referral? After all, his job is to assist vulnerable patients with complex medical needs. Wherever that referral comes from, he would presumably wish to do what he could to provide whatever prosthesis would be appropriate. On that basis, without such a clear policy or protocol in place, I am not convinced accepting the referral would be best construed as “misconduct” rather than as simply accepting a referral through a previously unidentified “policy gap”, better addressed as a “learning point” than anything else. I need to stress that nobody has suggested the Surgeon was anything other than an established and experienced maxillofacial consultant, personally and professionally known to the Claimant to be reputable. Of course, had the Claimant accepted a dubious referral from an unknown source, the analysis might be different.[168]A matter that was not actually part of the allegations but might more obviously be considered misconduct related to the Claimant’s decision to “waive” his treatment fee by not providing TrustPlus with an invoice. Sections 3.14 and 5.10 of the Policy are clear that it is the Respondent’s imperative to assess appropriate charges for treatment conducted at the Hospital. It was therefore not a decision for the Claimant to make, even had he wished not to charge Patient X. In this case, it’s likely that his “fee” would have been the bulk of the charge, although the Respondent would have been due payment as well. However, sections 5.10 5.14, 5.17 and 5.18 clearly indicate that it is the consultant (in conjunction with TrustPlus) who is responsible for the financial administration of private treatment. 5.18 is more concerned about over- rather than under-charging for treatment. Again, therefore, there is little reason why the Claimant should be aware of the intricacies of the Policy in respect of billing. It would possibly be reasonable to consider an unauthorised waiver of fees to be misconduct, but in context it is hard to see how it could be treated as more serious than deserving of an informal explanation of the billing process and instruction not to commit the same mistake again.[169]As neither the Respondent’s assessment of the facts nor its belief in the Claimant’s gross misconduct were based on reasonable grounds, the claim of unfair dismissal must succeed in my judgment. Additionally, it is far from clear (indeed unlikely in my view) that if the correct basis had been taken into account the decision would have been the same regardless.[170]Although this matter alone is enough to determine the claim, I shall address the other issues nevertheless. Issue 2: Reasonable investigation?[171]The next issue for me to consider was whether the Respondent had conducted a reasonable investigation into the Claimant’s misconduct.[172]I have outlined in my findings of fact how the investigation was conducted and that the Respondent has accepted various shortcomings in that process. It is important to stress however that the Respondent benefits from a wide discretion in relation to investigations. It is also important to note that the Investigation Officer is not a professional investigator, nor need she be. She is a radiologist. What was necessary was for the facts to be investigated fairly and reasonably thoroughly.[173]Several matters were raised before me and understandably. The main ones in my view were as follows.[174]Firstly, the Claimant’s suspension. It seems to me that it was largely assumed by the senior leadership team that suspension would be appropriate. The HR Advisor raised whether it was truly necessary. Certainly there was an argument that supervision of the Claimant and close monitoring of his patients might have been sufficient. On the other hand, serious allegations had been raised, including related to clinical competence. This is exactly the sort of matter over which an employer has a large discretion and deciding to suspend the Claimant was plainly one of a number of potentially reasonable decisions. The Claimant should have been accompanied at the suspension meeting, but he was at home and knew the suspending officer well. Too little contact was arranged with the Claimant, but it seems some attempts were made. There was little evidence the suspension was kept properly under review, but on the other hand the investigation was progressing and the allegations remained serious. I believe the suspension could have been better handled, but accept that overall it did not render the Claimant’s dismissal unfair.[175]Secondly, Patient X’s account largely went unchallenged and was not thoroughly investigated. It seems to me this was a rather unfortunate function of their complaint having been progressed via an internal disciplinary process rather than the usual complaints procedure. It is a very interesting aspect of this case that, whilst accusing the Claimant of having breached the Policy (which was not truly directed at him), the Respondent acted directly in breach of section 5.16 by not considering the complaint via the dedicated team. That does not mean that choosing that course was unreasonable, but if it chose to do so, consequential adjustments to the Respondent’s “usual” procedures would have been appropriate. The difficulty presented by the Respondent’s choice was perfectly encapsulated by the HR Advisor stating to the Investigation Officer that she was not permitted to approach Patient X in the context of an internal disciplinary process. Clearly the Investigation Officer thought it would have helpful and she was plainly right about that. Unfortunately, the complaints team had not opened a file on the matter so was not willing to offer her any assistance. Effective engagement with Patient X was therefore very limited.[176]Patient X was in very delicate health and was dissatisfied with her treatment. Anybody in that situation, especially knowing that their treatment might have cost £15,000, might complain. However, they are not trained medical professionals conducting a clinical investigation. They are vulnerable patients liable to raise concerns in very subjective, perhaps vociferous terms. That is presumably why a dedicated team deals with such complaints rather than them always being referred for disciplinary investigation. Most likely, the more typical course would be for concerns identified during the “normal” complaints process to be passed on for disciplinary investigation once the facts have been established more objectively.[177]Bearing that in mind, it would clearly have been more helpful for the Investigation Officer to have been allowed to ask questions of Patient X, ideally in conjunction with the complaints team. At the least, short of that, Patient X’s complaints needed to be viewed in the context I have just outlined rather than essentially being taken as facts and left unchallenged.[178]Stepping back, I remind myself that it is for the Respondent to determine how to run an investigation, so long as reasonable. I do not conclude that it was inherently unreasonable in this case, even though it could plainly have been improved in many respects. However, the matter doesn’t end there. Errors or misjudgements in an investigation process will almost invariably end up of some relevance at a later stage. They did in this case. I have outlined that above, in relation to the inadequate investigation into the Claimant’s role, the Policy and how it applies to him. That directly fed into the Respondent’s belief in the Claimant’s gross misconduct not being made on reasonable grounds. Below, I will explain how this treatment of Patient X’s complaint was relevant to whether the disciplinary process overall was “fair”, even if it did not render the investigation itself unfair.[179]The third matter I was concerned about in the investigation was the choice of interviewees. Apart from the TrustPlus finance manager, the other witnesses provided very little useful information. That was unsurprising as neither were in comparable roles or really knew of the Claimant or his work. The one person that truly did – the consultant on whose referrals the Claimant conducted most of his private treatment – was clearly identified by the TrustPlus finance manager but not interviewed. Neither was the Director of Private Patients, who was responsible for the Policy, although a limited number of questions were asked of him by email. The Surgeon was not contacted, despite being the consultant with overall responsibility for Patient X’s care. I found this very peculiar. However, I accept that it is not for the Tribunal to dictate to an employer who should or should not be interviewed in the course of an internal disciplinary investigation. The Investigation Officer had no knowledge that two of her choices of interviewee would be of next to no assistance to her. She might have considered that the consultant was too “close” to the Claimant to provide an objective view or had limited availability. She might have considered the Director too senior. These are really matters for the Respondent to determine, so long as reasonable choices are made. There could have been valid reasons for those choices. Just because I believe it might have been reasonable to interview others, does not mean that the Respondent must. Accordingly, I did not find the investigation unfair as a whole on this basis.[180]Fourthly, I will mention the presentation of the investigation report and management case at the disciplinary hearing. Again, I have concluded this is better considered under the next issue. I have highlighted how the Respondent’s policies expect an investigation to be neutral, without making conclusions. The Investigation Officer betrayed her lack of neutrality in her draft note for the disciplinary hearing. That would have impacted on her preparation of the report, but I accept it was written more objectively (although noting her conclusion that the Claimant actively sought to “conceal” Patient X’s treatment). But, again, I stress that investigating officers are not professionals at the task. They should not be held to that standard. They may well form “unsafe” conclusions; to an extent that is natural and unavoidable bearing in mind their role to collect evidence. Such reports often end up appearing (and being) “one-sided”. That is not to say an investigation will always end up being considered unreasonable. That is why I conclude that the one-sided preparation of the report and presentation of the case did not constitute an unreasonable investigation overall, although the matter remains highly relevant to the ultimate outcome of the claim. Issue 3: fair process?[181]Numerous considerations factor into whether a disciplinary process is fair overall or not. In this case, in my judgment, at least four aspects of the process were so significantly unfair that each one alone would have been sufficient for me to uphold the claim regardless of any other matters.[182]Firstly, was the handling of Patient X’s complaint/evidence. I have mentioned this above, including in my findings of fact. Ultimately, due in part to the way in which their complaint was handled generally, their allegations were not properly “tested” or investigated. In the circumstances, it was incumbent on the Respondent to have done so before accepting the allegations as fact. At least, it needed to clearly record they had not been thoroughly investigated. Instead, the full complaint with all of its subjective content was copied into the body of the investigation report. There is no argument that, on its face, it raised potentially serious matters in stark terms.[183]When factual issues were in issue, such as whether the Claimant had registered Patient X with TrustPlus, the Claimant was recorded as having presented no evidence. Patient X’s views on such matters were recorded, for instance, in the Investigation Officer’s conclusions as “circumstantial evidence that [the Claimant] attempted to conceal the treatment of the patient” and were therefore given some weight. This is despite those views sometimes seeming inherently implausible. In relation to the “store room” in which the treatment was allegedly undertaken, no consideration was given as to whether it was at all likely that an experienced prosthetist would undertake treatment in such a room, whether someone in Patient X’s position would have accepted that, where they would have been seated during a procedure that was long enough for their partner to have “occasionally [left] for refreshments”. Importantly, no consideration was given as to how the Claimant would have answered queries from colleagues about why he was giving treatment in any form of “store room”, in circumstances where Patient X themself had indicated that at on at least three occasions a colleague/colleagues asked whether he needed assistance. It was inherently far more plausible that the reference to a “store room” would have been to a room containing various materials used in the creation, adjustment and fitting of prostheses, the sort of which the Claimant habitually used. Plainly they might be more functional and rudimentary in nature than the sort of "proper treatment room” on Harley Street with which Patient X might be more familiar, but that is irrelevant.[184]I must also note that, in the conclusions to the investigation report, the Investigation Officer recorded that Patient X had been invoiced, but I can’t see where they said that and, more importantly, why that would have happened at all when Aviva was paying. This was entirely unexplained. The Investigation Officer also recorded that Patient X said that they had encountered nobody on their visits; they specifically wrote that they had encountered colleagues of the Claimant at least three times. This rather undermined the Investigation Officer’s assessment. On their face, even on a relatively cursory analysis, the accuracy and objectivity of Patient X’s complaint was clearly in doubt. It might have been better to describe their evidence with words to the effect of “subjective and a little unclear” rather than “useful”.[185]The Claimant submitted that this failure to interrogate Patient X’s evidence, whether by the Investigation or Dismissing Officer amounted to a “breach of natural justice”. I would not use those terms, but accept that unquestioningly placing some reliance on inherently implausible subjective statements from a vulnerable and aggrieved patient was unfair in the circumstances. This is why departing from the usual procedure of investigating patient complaints via the dedicated team was ill-advised, certainly without arrangements in place to have Patient X’s complaints better investigated or considered by those more familiar with handling such matters. I was mindful that the standards expected of an employer’s disciplinary process are not those of a criminal court, for instance, but some circumspection around this evidence was necessary. It was unfortunately lacking.[186]Secondly, a matter that I have largely addressed above, is the inherent and distinct unfairness involved in both misunderstanding an employee’s role and responsibilities and the workplace policies that apply to them. I accept that this was a particularly complex issue, as not only does the Respondent employ a large number of people across a wide range of positions, but it also operates a large suite of policies, not all of which will be clear to everyone. But the Respondent is a large organisation with the resources to properly consider such matters. In my view, it is the epitome of unfairness to judge an employee, in this case a technician, against the standards expected of others, in this case consultants. Whatever broad knowledge the Claimant had of the administrative requirements related to the treatment of private patients, attributing him with specific knowledge and responsibilities that were not his was manifestly unfair.[187]When assessing compliance or otherwise with the Policy, the Respondent had to ask itself to what extent it applied to the Claimant and to what extent he could reasonably have been aware of it before deciding to dismiss him due to a breach of its requirements. Emphasis was placed on his seniority, but he was neither a senior manager nor a consultant. He was a senior technician, with no specific administrative responsibility for private patients. In practice he had no established protocol for contacting TrustPlus, save that when he had completed treatment on a private patient he would raise an “invoice”, by which I mean giving summary details of the patient, the treatment and the referring consultant. Even if he would sometimes or always register a patient on a consultant’s behalf it was rare and would have involved little more.[188]Both parties agreed that the Policy applied to the Claimant, but I’ve concluded that there was very little in it that directly addresses what someone who is not a treating consultant or clinician must do in respect of private patients. Admission arrangements are the responsibility of the treating consultant and the patient remains under their care throughout. Likewise record-keeping. Nothing in the policy places any obvious obligation on anyone else involved in treating a patient, notably to “check” the private practising privileges of the treating consultant/clinician. The version in force at the time recognised in its introduction that the governance processes contained within the Policy concerning private practising privileges were inadequate. I agree.[189]According to the Policy, Patient X’s admission was a matter for the Surgeon. He should have made his referral to TrustPlus to seek the Respondent’s approval to his use of the Claimant’s services. The Claimant has been punished for that, despite the Policy not making it at all clear that he had any responsibility over that process or to check the Surgeon’s compliance. I recognise of course that the Respondent had no obvious recourse to the Surgeon for that failure (nor would he obviously have been aware of the correct referral procedure to follow), but that is not a good reason to attribute the failure to the Claimant instead. It should not be for the Claimant to bear the consequences of the Respondent’s incomplete policies, regardless of whether the Claimant in fact sought to register Patient X himself as well.[190]Of course, I must and do accept that workplace policies must be read flexibly and in context. I fully accept that the principles underlying the Policy are valid and important. I accept that Respondent staff should have some general awareness of them. But it is significant leap from there to imposing on non-consultant staff the specific responsibilities of a consultant, without informing them, and then dismissing them for a failure to comply.[191]Thirdly, I was concerned at the handling and framing of the allegations against the Claimant. They were relatively neutral, concerning failures to properly implement the Policy. The first to be upheld did not mention Patient X having been treated “intentionally and with the intention to defraud the Respondent” or words to that effect. The second likewise. Neither allegation mentioned that the Claimant’s record-keeping was alleged to be so dissatisfactory as to potentially amount to gross misconduct. But both were factors plainly in the Dismissing Officer’s mind when determining that the Claimant had committed gross misconduct and should be dismissed. As both played such a clear role in the dismissal, fairness required the Claimant to be made aware of that and have the chance to state his case on those points. He may or may not have been able to say much more about his intentions, but he certainly could have clarified the notetaking requirements and practice of his role, particularly in the context of private treatment. Essentially, he believed he had responded sufficiently to the allegations only to be informed (during these Tribunal proceedings) that he had not addressed two of the key factors supporting the Respondent’s conclusions. It seems to me that this is another unintended consequence of having failed to firstly pursue Patient X’s complaint via the usual process. The allegations effectively emanated almost directly from Patient X’s complaint, rather than being passed through the “filter” of the complaints process beforehand.[192]Finally, I will refer to the handling of the Claimant’s appeal. The facts are straightforward. The Claimant didn’t attend his disciplinary hearing because he was ill. The Respondent did not know that at the time. I have no concern with the disciplinary case being determined in the Claimant’s absence in these circumstances. However, self-evidently, he would not have been aware of the outcome.[193]A dismissal letter was sent on 27 December 2023 to his NHS email account, which was then promptly closed because the Claimant had been dismissed. It was not sent by post. On 22 January 2024, the Claimant’s solicitor wrote to the Respondent to complain about the length of his suspension and lack of updates. This was forwarded to the Head of HR. She must have been aware at this point that the Claimant had not received his dismissal letter. Within 14 days of this date (i.e. well within the 14-day appeal timeframe, which runs from the date “of receipt of the letter confirming the outcome of the formal action”), he filed his appeal, supported by medical evidence as to why he did not attend the disciplinary hearing, explaining that he believed the decision to be unreasonable and unfair. The same Head of HR summarily rejected the appeal as having been lodged out of time and with insufficient detail.[194]At the hearing, she explained that she refused to progress the Claimant’s appeal in part because it was late and he was seeking to draw out the process. It was distinctly unclear to me, firstly, why it was him that was considered to be delaying matters when the Respondent had taken almost five months to reach a decision. Secondly, what benefit was there to him? He had been dismissed and was no longer being paid. He had missed the opportunity to present his claim due to illness and wished to do so on appeal. Besides that, and more fundamentally, there was an argument the appeal was not in fact late. He hadn’t received the dismissal letter by 22 January 2024 and the Head of HR knew that. Even if she thought the Claimant had intentionally misled his solicitor, or found that he should have checked his emails whilst on sick leave two days after Christmas, the “delay” in filing the appeal was barely 2-3 weeks and was explained by sickness.[195]Another reason she gave was an alleged lack of detailed grounds of appeal. I have explained how the form is set out in my factual findings. The request for “specific details” is in italics right beneath three tick boxes specifying the permitted grounds of appeal. There is no obvious space below it in which to provide such grounds. I was informed that this is a document that “expands” when you start typing. That was far from clear to me and I would encourage the Respondent to amend it. It was also far from clear that any further information was required to be provided. The Claimant had ticked a box identifying his ground of appeal.[196]Taking all of this into account, I had no hesitation in concluding that the refusal to accept the appeal was wholly and manifestly unreasonable and unfair. Arguably it was not late. Even if it was, it was received barely a month after the dismissal letter was sent between Christmas and New Year. Even then, it was explained by a sickness absence, supported not only by a fit note but a specific GP letter. This explained not only the lateness but the Claimant’s failure to attend the disciplinary hearing, which in itself some might consider militates in favour of permitting an appeal to proceed. As to allegedly missing grounds, the appropriate box was ticked. It wasn’t clear anything further was required, especially as the next stage in the appeal process is to prepare a “statement of case”. More to the point, it would have been very easy to ask for more detailed grounds if they were desired. In truth I cannot conceive of any reasonable employer refusing to accept an appeal in these circumstances and allowing the appeal, which is a wellestablished and basic part of any reasonable disciplinary process, to proceed. This particular decision fell clearly outside the band of reasonable responses to the appeal being lodged. Issue 4: range of reasonable responses?[197]As to whether the dismissal fell within the range of reasonable responses to the Claimant’s conduct, I must bear in mind that the Respondent had found the Claimant to have acted deceitfully. There is no real argument that dismissal would not be a reasonable response to that. The real issues in this case were that the finding of deceitful conduct was not based on reasonable grounds and that the process followed in the Claimant’s dismissal was distinctly unfair in several important respects. Wrongful dismissal[198]In relation to the wrongful dismissal claim, I have concluded the Claimant attempted to register Patient X prior to commencing her treatment. He should not, however, have treated her without specific approval as the Surgeon did not have private practising privileges at the Hospital. He should have informed the Surgeon to approach TrustPlus with his referral. Although it was not directly part of the reasons for his dismissal, I accept that he should not have “waived” his fee as that was a decision for the Respondent to make.[199]These actions are not consistent with the Policy. However, the Policy is not directed at the Claimant. Although he had treated private patients on occasion, they were always on referral from a consultant. It is the referring consultant who is primarily responsible for all matters concerning the admission and care of private patients. The Claimant was not responsible for these matters. He had no particular knowledge of the Policy or its details, nor was it reasonable to expect him to have such detailed knowledge. When errors or oversights regarding the treatment of private patients are made, typically they are dealt with informally. Nothing in the Policy required the Claimant to take any specific steps, but in line with its broad purpose he sought to register Patient X. He was not directly required to consider the Surgeon’s practising privileges. He was appropriately qualified and insured so there was no good reason to find the Claimant had put patient safety at risk.[200]Although in hindsight the Claimant accepts he may have made some mistakes, there was little reason for him to have known he was making them at the time. They were not intentional and were in very large part due to the inadequacy of the Respondent’s policies and protocols relating to the treatment of private patients at the Hospital. Whatever errors the Claimant may have made, I am entirely satisfied that they were far from constituting a repudiatory breach of contract that would entitle the Respondent to terminate his employment without notice.[201]Accordingly, I have found the claims of unfair and wrongful dismissal to both be well-founded and both succeed. Approved by: