Mr R McIntosh v Western Isles Health Board: 8000974/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000974/2024
Between
Mr R McIntoshClaimantWestern Isles Health BoardRespondent
Before
Employment Judge M WhitcombeMr A Crammond for claimant(Counsel) for claimantMr K Gibson for respondent(Counsel) for respondentDate 29 August 2025
JUDGMENT
It was a term of the contract of employment between the claimant and the respondent that the respondent must apply the processes set out in NHS Circular No. 1990 (PCS) 8 when bringing disciplinary proceedings against the claimant involving allegations about professional conduct or competence.
REASONS
[1]Mr McIntosh, who I will refer to as “the claimant”, is a dentist who was formerly employed by the respondent health board or its predecessors for over 25 years from 21 August 1998 until 29 January 2024 when his employment was terminated for alleged gross misconduct. The duties, powers and activities of a health board in Scotland are well-known and require no further explanation.[2]By the end of his employment the claimant was a “Senior Dental Officer” within the respondent’s Public Dental Service, generally known as “a PDS Dentist”. The claimant’s primary base was the Dental Clinic within St Brendan’s Hospital in Castlebay on the Isle of Barra but he delivered primary care dental services throughout the southern isles of the Uists and Barra.[3]The claimant has been a member of the British Dental Association since 1979. That is the recognised trade union for all employed dentists in the UK, including those employed by the respondent. The preliminary issue for determination at this hearing[4]By a claim form (ET1) received by the Tribunal on 3 July 2024 the claimant brought a complaint of unfair dismissal. Unusually, this preliminary hearing concerned a preliminary issue which was neither qualifying service nor the jurisdictional time limit. At a preliminary hearing for case management held on 11 October 2024, EJ Hosie directed that a further 3 day preliminary hearing should be held to determine what he summarised as “the contract issue”, the essential point being whether, as a matter of contract, the respondent should have applied the disciplinary procedure in NHS Circular No. 1990 (PCS) 8 or rather that known as the “Once for Scotland Conduct Policy.”[5]The notice of preliminary hearing summarised the preliminary issue simply as the “contract issue”. By agreement, the parties refined it in the following way: “what was the correct interpretation of the claimant’s contract of employment at the material time and should the respondent have applied PCS8 or the Once for Scotland Conduct Policy when disciplining him.”[6]I understood both sides to agree that however I resolved that question it would not be determinative of fairness assessed in accordance with section 98(4) of the Employment Rights Act 1996. Nevertheless, this hearing has been arranged in the belief that it would be helpful and consistent with the overriding objective to determine it as a preliminary issue.[7]Both sides also agree that the allegations against the claimant included matters of professional conduct or competence. That is important because the disciplinary procedures sometimes recognise a difference between “personal misconduct” and criticisms of “professional conduct or competence”, leading to a different and more elaborate procedure in the latter types of case. I do not need to say anything else about the allegations for the purposes of this decision.[8]At the end of the preliminary hearing I gave an oral judgment on the preliminary issue in favour of the claimant. These are the reserved written reasons for that judgment. My reasoning is also summarised in the diagram in the Appendix.[9]I would also like to record my gratitude to all the representatives on both sides for their skilful advocacy at the hearing and their obvious hard work prior to it. Both sides should know that they have been very well represented.
Evidence
[10]I heard from the following witnesses in the following order:a. Noreen Clancy, Head of Employee Relations for NHS Lothian and also Chair of the Once for Scotland Programme Policy Development Group from Autumn 2018;b. Diane Macdonald, Director of HR and Workforce Development for the respondent, Western Isles Health Board;c. Robert McIntosh, the claimant;d. David Paul, the British Dental Association Employment Relations Officer with responsibilities including Scotland.[11]Witness statements were not used so evidence in chief was given entirely orally. All witnesses gave evidence on oath or affirmation and were crossexamined. In general, I found all of the witnesses to be credible, although I did find Noreen Clancy to be evasive and unwilling to answer a direct question at one point. I got the impression that she was unwilling to give an answer which she thought might harm the respondent’s case. That said, the construction of contractual and quasi-contractual documents had a much greater bearing on the outcome of this hearing than the credibility of oral evidence.[12]I was also provided with a joint file of documentary evidence which ran to 617 pages once the original file was combined with the supplementary file.
Relevant facts
[13]I made the following factual findings for the purposes of the preliminary issue. Many of the relevant facts were agreed and recorded in an extremely helpful joint chronology. Where facts were disputed, I made my findings on the balance of probabilities, in other words the “more likely than not” basis applicable to almost all civil litigation. If I decided that a fact was more likely to be true than untrue, then for the purposes of this decision it is treated as being true. The converse also applies. NHS Circular No.1990 (PCS) 8[14]On 19 March 1990 NHS Circular No. 1990 (PCS) 8 was issued. It is headed, “Disciplinary Procedures for Hospital Medical and Dental Staff, Community Medicine Staff and Doctors in Public Health Medicine.” The opening words are, “This Circular notifies Health Boards of the introduction of new disciplinary procedures for hospital medical and dental staff and community medicine staff and doctors in public health medicine.”[15]The essential scheme was that the position of doctors and dentists covered by 1990 (PCS) 8 would be the same as that of other NHS staff in cases of personal misconduct. Personal misconduct meant “performance or behaviour of practitioners not associated with the exercise of medical or dental skills.” However, a different and more elaborate procedure would apply to cases concerning professional misconduct, which was defined as “performance or behaviour of practitioners arising from the exercise of medical or dental skills.” 16. 1990 (PCS) 8 introduced:a. “professional review machinery”, an informal mechanism for reviewing the conduct of hospital consultants who were alleged to have repeatedly failed to honour their contractual commitments (Annex A);b. an “intermediate procedure” intended for less serious matters involving professional conduct or competence, which made use of independent professional assessors (Annex B);c. a procedure for “serious disciplinary cases involving the professional conduct and professional competence of all hospital medical and dental staff and community doctors and doctors in public health medicine where the outcome of the disciplinary action could be the dismissal of the medical or dental practitioner concerned.” It involved a highly structured procedure with a specified timetable and could ultimately result in a right of appeal to the Secretary of State (Annex C). The claimant’s written statement of terms and conditions (2001)[17]The claimant signed a written statement of terms and conditions on 25 September 2001, although his continuous employment began on 21 August 1998. The covering letter stated that the written statement of terms had contractual effect. The claimant’s post was “Community Dental Officer”, at Dental Officer grade, based at St Brendan’s Hospital. The claimant worked in the “Community Dental Service” (“CDS”). General Whitley Council conditions of service and other agreements approved by the Secretary of State for Scotland were incorporated by express reference. That included disciplinary procedures. However, it is not necessary to refer to any of them for the purposes of this judgment. Creation of the Scottish Public Dental Service[18]On 2 March 2010 the Chief Dental Officer announced on behalf of the Scottish Government Primary and Community Care Directorate a plan to combine the Community Dental Service (“CDS”) and the Salaried General Dental Services (“GDS”) to form a new Scottish Public Dental Service (“PDS”). The CDS and the salaried GDS had a range of different terms and conditions of employment and work would be undertaken by a sub-group of the Scottish Joint Negotiating Forum to “align” those terms. It was a tripartite body comprising representatives of the Scottish Government Health Directorates, NHS Employers and the British Dental Association (Scotland),[19]The National Health Service (General Dental Services) (Scotland) Regulations 2010 followed later that year to put the new arrangements on a statutory footing. Management of Employee Conduct PIN Policy (April 2012)[20]The Partnership Information Network (“PIN”) was a tripartite body which developed templates in certain areas of policy. It comprised staff side representatives, representatives of NHS management and representatives of the Scottish Government. The intention was that the PIN policies would set minimum standards for the policies of individual health boards. In May 2012 the PIN issued the “Management of Employee Conduct PIN Policy April 2012”. It was introduced by the responsible minister Nicola Sturgeon as representing “an exemplar approach to employment policy and practice”. The expectation was that while health boards could develop their own conduct and competence policies they would have to meet the minimum standards of the PIN policy.[21]Paragraph 1.8 states: This PIN policy applies to all directly employed staff, including bank/temporary staff and NHS Scotland staff on secondment. It applies to all medical and dental staff employed by Boards in cases of personal misconduct (as defined in NHS Circular 1990 (PCS)8). It does not apply to matters concerning the professional conduct or competence of medical and dental staff, which are covered by national agreements…or…the following circulars...[22]NHS Circular 1990 (PCS) 8 is the first such circular referred to and paragraph 1.8 continues: NHS Circular 1990 (PCS) 8 (and subsequently PCS(DD) 2001/09) sets out the distinction between issues of personal conduct and those related to professional conduct or competence.[23]Appendix 1 contained the “Model Management of Employee Conduct Policy”. In section 2 “Scope” it stated as follows: staff and [name of organisation] staff on secondment. It applies to all medical and dental staff in cases of personal misconduct. However, it does not apply to matters concerning the professional conduct of medical and dental staff.[24]It goes on to set out detailed procedural rules which it is not necessary to summarise for present purposes. It is sufficient to say that they are very different from the arrangements in 1990 (PCS) 8.[25]The model conduct policy in Appendix 1 of the PIN policy is important because neither side in this case can locate the respondent’s own policy which implemented the PIN policy in 2014. This is dealt with further below. Scottish Public Dental Service Terms and Conditions of Service (1 April 2013)[26]An important part of the development of a new Scottish Public Dental Service (“PDS”) was the agreement and implementation of new terms and conditions for those working within it. The terms were agreed by representatives of NHS employers, the Scottish Government and the British Dental Association. The new terms and conditions were effective from 1 April 2013 and replaced the previous terms for all PDS employees. That was confirmed and notified to NHS employers including the respondent in NHS Circular PCS (DD) 2013/5.[27]Part 1 (“Introduction”), paragraph 2 of the Scottish Public Dental Service Terms and Conditions of Service stated that: The terms and conditions of service set out in this handbook shall incorporate, and be read subject to, any amendments which are from time to time the subject of negotiation by the appropriate negotiating bodies, principally the Scottish Joint Negotiating Forum (SJNF) and are approved by Scottish Ministers after considering the results of such negotiations.[28]The full Scottish Public Dental Service Terms and Conditions of Service were included in the documentary evidence at this hearing but it is only necessary to refer to one other section. Section 13 was headed “Disciplinary Procedures” and the parties focussed on paragraphs 1 and 3: Personal Conduct 1. Disciplinary issues relating to personal conduct such as timekeeping, behaviour/conduct etc should be dealt with through the NHS Board’s Management of Employee Conduct policy. Performance Concerns 2. [Not relevant for present purposes]… Professional Issues 3. If an adverse report is received from the Dental Reference Officer or from any other source raising professional concerns this will be dealt with through the NHS Board’s Employee Conduct policy in the normal way. The claimant’s new terms and conditions of employment with the respondent (19 February 2014)[29]The Scottish Public Dental Service Terms and Conditions of Service effective from 1 April 2013 were implemented by agreed variations to individual contractual terms, including those of the claimant. The claimant signed new terms and conditions of employment with the respondent on 19 February 2014. They confirmed his appointment as a “Senior Dental Officer” and the normal base remained the Barra Dental Clinic within St Brendan’s Hospital on the Isle of Barra.[30]Clause 3 provided that, “This appointment is subject to the national Terms and Conditions of Services (2013) for Dentists employed in the Scottish Public Dental Services (“the TCS”) which may be amended by collective agreement from time to time.”[31]Clause 13 provided that, “The provision [sic] relating to disciplinary procedures are set out in Section 13 of the Terms and Conditions of Service. A copy of the NHS Western Isles Management of Employee Conduct (Disciplinary) Policy can be obtained from your line manager or HR Department.”[32]As noted above, that disciplinary policy cannot be found, but both sides proceed on the basis that it was most likely in substantially similar terms to the PIN policy in that area, which had been intended to set minimum standards from which health boards should not derogate. That was Diane Macdonald’s unchallenged evidence. She thought that the only possible changes might have been things like inserting the name of the respondent, and possibly clarifying who at board level had the power to dismiss. She explained that it was simply a question of “Western Isles-ing” the PIN policy. I make the equivalent finding of fact.[33]The 2013 terms have not so far been varied by collective agreement. The claimant has not agreed to any variation of them either. The respondent’s conduct policy (2014)[34]For the reasons explained above, I find that while this policy cannot now be found, all relevant terms were the same as those set out in the model conduct policy in Appendix 1 of the PIN policy. The respondent’s conduct policy (2015 & 2017)[35]The joint file of documentary evidence included a copy of the respondent’s Employee Conduct Policy issued in 2015 and revised in 2017. At clause 2.1 (“Scope”) it stated as follows: staff and NHS Western Isles staff on secondment. It applies to all employed medical and dental staff in cases of personal misconduct. However, it does not apply to matters concerning the professional conduct of medical and dental staff. The Once for Scotland Programme (2020)[36]A desire arose for greater consistency of approach among the Scottish health boards regarding their policies and terms and conditions of employment. There were 22 different health boards and staff would move between them, so it was felt to be inappropriate for different sets of policies or terms and conditions to apply. The Once for Scotland programme was intended to resolve that by devising standard workforce policies which would apply to all staff. However, as Noreen Clancy put it, the approach was to “refresh” the PIN policies rather than to renegotiate them.[37]The policy development group was tripartite, including representatives of staff, employing health boards and government. While there were staff side representatives, they did not include every trade union and they did not include the British Dental Association. The process did not amount to collective bargaining with recognised trade unions. Noreen Clancy described it as a “partnership approach” involving consultation but not collective bargaining. She also accepted that the Once for Scotland Programme had no power or authority to change the terms and conditions of those employed by health boards. It was the responsibility of health boards to implement the policies locally, “jointly with their staff side representatives”. Changes to terms and conditions would need to be effected through the Scottish Joint Negotiating Forum.[38]Diane Macdonald, the respondent’s HR Director, essentially agreed saying, “Once for Scotland wasn’t about changing any contractual position”, and ,“the Programme Board is not about renegotiating terms and conditions, it was a refresh and applying terms and conditions that were already there, rather than renegotiating, was just making clear what the position was.”[39]The first set of policies went live in March 2020. That set included the conduct policy, the capability policy and the investigation process. The version in the joint file of documents was last updated in November 2021. In the section headed “Scope” it read as follows: medical or dental staff, please refer to the relevant circulars…[40]It is common ground that the list of NHS circulars which followed was intended to include 1990 (PCS) 8, but a typographical error describes it as “1990 (PCS) 81”. The policy must therefore be read as referring to 1990 (PCS) 8.[41]The accompanying “Workforce Policies Investigation Process” stated: This policy applies to all employees, with the exception of medical and dental staff in relation to their professional conduct or competence, for which the relevant policy applies. It also applies to workers, i.e. bank, agency and sessional workers. References to employees should be taken to apply to workers unless otherwise stated. Changes approved by the Once for Scotland Programme Board in May 2023[42]The Once for Scotland Programme Board met on 30 May 2023 to consider, among many other things, a “Change Request to the NHS Scotland Conduct and Capability Policies - Public Dental Service”. No representatives of the British Dental Association were present, though there were other staff side representatives. The Programme Board approved the following amendment to the “Scope” section of the NHS Scotland Conduct Policy, so that it would state: This policy applies to all employees, with the exception of medical and some dental staff in relation to their professional conduct or competence, for which the relevant policy applies. [Emphasis added to highlight the change.][43]The change did not pick up the error in relation to circular 1990 (PCS) 8, which was once again referred to erroneously as 1990 (PCS) 81, but both sides agree that it should once again be read as a reference to 1990 (PCS) 8.[44]Noreen Clancy confirmed that the status and processes of the Once for Scotland Programme Board were the same in 2023 as they had been in 2020 (see above). It was tripartite, including representatives of staff, employing health boards and government. While there were staff side representatives, those staff side representatives did not include every trade union and they did not include the British Dental Association. The process did not amount to collective bargaining with recognised trade unions. The Once for Scotland Programme had no power or authority to change the terms and conditions of those employed by health boards. It was the responsibility of health boards to implement the policies locally and to make any necessary changes to terms and conditions.[45]By this stage, the disciplinary proceedings against the claimant had commenced and a dispute had arisen regarding the applicable policy. The respondent asserted that matters should be dealt with through its Employee Conduct Policy, which incorporated the November 2021 edition of the Once for Scotland Conduct Policy. British Dental Association Objection[46]On 5 June 2023 David Paul of the BDA wrote to the respondent to express concerns on behalf of his member, the claimant. He was concerned that the respondent’s position was that the procedure set out in 1990 (PCS) 8 did not apply to the claimant’s situation, and that if the PDS Terms and Conditions of 2013 had intended 1990 (PCS) 8 to apply then they would have said so. Mr Paul said that the BDA officials involved in the negotiations leading to the respondent’s 2013 terms and conditions had believed that the wording was temporary pending the adoption in Scotland of the “Maintaining High Professional Standards” arrangements for issues of professional conduct or competence, or an equivalent. Mr Paul believed that the procedure in 1990 (PCS) 8 should apply.[47]On 20 June 2023 the respondent replied to David Paul to say that the change approved by the Programme Board on 30 May 2023 “removes any confusion around the applicability of the policies in relation to PDS dentists.” Revised Workforce Policies Investigation Process (31 July 2023)[48]This was issued on 31 July 2023. In the section headed “Scope” it stated: This policy applies to all employees, with the exception of medical and some dental staff, in relation to their professional conduct or competence to which the relevant policy applies. It also applies to workers, such as bank, agency and sessional workers. Revised “Once for Scotland” Conduct Policy (1 August 2023)[49]A revised Conduct Policy was issued on 1 August 2023. The amended provisions in the section headed “Scope” read as follows: medical or some dental staff, please refer to the relevant circulars - 1990 (PCS) 8 amended by 1990 (PCS) 32, PCS (DD) 1994/11, PCS (DD) 1999/7, PCS (DD) 2001/9, SGHD/CMO (2013) 22. For Public Dental Service dentists, see: Scottish Public Dental Service Terms and Conditions of Service 2013. It relates to any type of behaviour or conduct that falls below the standard required by the employer or is in breach of organisational policies. Read the Guide to expected standards of behaviour. Concerns relating to breaches of regulatory standards can only be determined by the relevant regulator. Read the Criteria for referral to external agencies. The employer may be unable to determine the outcome of a conduct process in advance of the regulator considering the referral. However, the employer may be in a position to determine an outcome based on employment standards and contractual obligations. Further BDA objection[50]Neither the claimant nor representatives of the BDA had agreed to the above changes of policy, or to any change in the claimant’s terms and conditions of employment.[51]On 10 May 2024 David Paul wrote to the respondent following a meeting on 3 May 2024. He argued that the BDA should have been consulted on the proposed change, and that PDS dentists should not be treated differently from other salaried dentists or medical colleagues. He contended that the BDA would not have agreed to the change and that the policies should revert to their previous wording.[52]David Paul was invited to a meeting of the Once for Scotland Workforce Policies Programme Board on 31 May 2024. He made the same points. Noreen Clancy’s view was that the previous wording of the Once for Scotland Conduct Policy and the PIN policies had not been correct because they failed to reflect the terms and conditions of PDS dentists issued in 2013, so a change had been required.[53]The Programme Board declined to reverse the change they had agreed just over a year earlier on 30 May 2023. That was confirmed in a letter to David Paul dated 29 July 2024.
Legal principles
[54]I did not detect any real dispute between the parties as to the applicable legal principles.[55]The following principles can be derived from the line of cases which includes Reardon Smith Line Limited v Yngvar Hanser-Tangen [1976] 1 WLR 989, HL, Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896, HL, BCCI v Ali [2001] UKHL 8, Chartbrook v Persimmon Homes [2009] UKHL 38, Rainy Sky SA v Kookmin Bank [2011] UKSC 50, SC, Arnold v Britton [2015] UKSC 36, SC, and Wood v Capita Insurance Services Ltd [2017] AC 1173.[56]The representatives agreed that the principles set out below also apply in Scotland: see for example Fife Council v Royal and Sun Alliance Insurance Plc [2017] CSOH 28 and Ashtead Plant Hire Co Ltd v Granton Central Developments Limited [2020] CISH 2. In the latter case the Inner House of the Court of Session referred to the principles of contractual construction derived from those cases as "well established”. I will borrow and adapt the summary of relevant principles set out by Lord Drummond Young in Ashtead.[57]The aim of interpreting a provision in a contract is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant. The hypothetical reasonable person is someone who has all the background knowledge which would reasonably have been available to the parties in the situation they were in at the time of contracting.[58]Two important principles follow from that.a. A contract must be construed contextually, because language can be ambiguous and a proper view of the meaning of a passage can only be reached by placing that passage in context. It is necessary to consider all the relevant surrounding circumstances.b. The correct approach to construction is objective. It seeks to establish the meaning that a reasonable person in the position of the parties would have understood the contract to have. The meaning of a contract cannot be determined by the subjective intentions or understandings of one of the parties and declarations of subjective intent are irrelevant. A court or tribunal must instead take an objective view, based on what would have been known to a reasonable person at the time the contract was entered into.[59]A court or tribunal should also adopt a purposive approach, having regard to the fundamental objectives that reasonable people in the parties’ position would have had in mind. The substance of the parties’ agreement, construed objectively, should prevail over niceties of wording, especially where clauses have not been well drafted. In some cases, a purposive construction may justify a conclusion that the parties must have made errors of wording or syntax.[60]In a similar way, a court or tribunal may also have regard to “business common sense”, though I would observe that this may have more to add as a distinct principle in a commercial context than it does in an employment context. If there are two possible constructions the court or tribunal is entitled to prefer the construction which is consistent with business common sense and to reject the other, even if the rejected option is the more literal interpretation of the words used. Lord Drummond Young observed in Ashtead that interpretation in light of “commercial common sense” was likely to overlap with the need to consider context and the need to adopt a purposive construction.[61]It is necessary to say a little more about the potential relevance of precontractual negotiations. Normally, the law excludes from the relevant context evidence of the previous negotiations of the parties and their declarations of subjective intent. Such evidence will be inadmissible for the purpose of drawing inferences about what the contract means. However, it might be admissible for other purposes, for example, to show that a fact which might be relevant as background was known to the parties at the time of contracting.[62]The interpretation of words in accordance with their ‘ordinary and natural’ meaning reflects the common-sense proposition that courts and tribunals do not easily accept that contracting parties have made linguistic mistakes, particularly in formal documents. On the other hand, if the background would lead a reasonable person to conclude that something must have gone wrong with the language or the drafting, then the law does not require Tribunals to attribute to the parties an intention which they plainly could not have had. Submissions[63]The representatives provided helpful written submissions prior to the hearing and updated them once the evidence had been completed. They also made concise oral submissions. Since the submissions were made primarily in writing little useful purpose would be served by setting them out or summarising them here too. I will deal with the main points when setting out my own reasoning and conclusions. Reasoning and conclusions The claimant’s original contractual terms in 2001[64]Clause 13 of the written statement of terms and conditions of employment signed by the claimant on 25 September 2001 expressly incorporated General Whitley Council conditions of service and “other agreements which have subsequently been approved by the Secretary of State for Scotland”.[65]In my judgment that phrase includes the agreement reflected in NHS Circular 1990 (PCS) 8. The reasons are apparent from the section of the circular headed “Background”. The circular was issued by the Scottish Home and Health Department following a report to Ministers by a tripartite Joint Working Party in August 1988, a White Paper, and subsequent negotiations with the professions. It was an agreement approved by the Secretary of State.[66]For those reasons, I find that the claimant’s original contractual terms incorporated the provisions of 1990 (PCS) 8 by reference. The scope of 1990 (PCS) 8[67]The respondent argues that the claimant fell outside the scope of 1990 (PCS) 8. I reject that argument and find that the scope of NHS circular 1990 (PCS) 8 included the claimant for the following reasons.[68]Paragraph 1 (“Introduction”) stated that it introduced new disciplinary procedures for “hospital medical and dental staff and community medicine staff and doctors in public health medicine”.a. The claimant fell within that group because he was a dentist based at a hospital. He was part of the hospital dental staff. There was no evidence of circumstances known to the parties at the time of contracting which might suggest to a reasonable observer that dentists such as the claimant were intended to be excluded from that phrase. There is nothing about the context which suggests that the parties intended to depart from the plain and simple meaning of those words.b. Alternatively, or additionally, the claimant was a member of “community medicine staff”, another aspect of the definition. Once again, I have not heard any evidence of background or context at the time of contracting which might suggest that it was intended that the claimant should be excluded from that definition. In my judgment the natural meaning of “community medicine” includes community dentistry, in so far as the claimant’s work was done in the community or for the community served by the respondent health board.c. I also find that a purposive construction favours those interpretations. The purpose of 1990 (PCS) 8 was to extend a carefully negotiated and approved procedure to employed doctors and dentists delivering services on behalf of the employing health board.d. A reasonable observer would inevitably conclude that the claimant was a type of dentist who had been intended to benefit from the procedures in 1990 (PCS) 8.[69]Although at this hearing the respondent argued that the claimant fell outside the scope of 1990 (PCS) 8, that was not an argument raised in the response (ET3 and attachment) and it appears to have been raised for the first time at the hearing. It was also striking that the respondent’s HR Director gave evidence which directly contradicted the argument. Both in her evidence in chief and in cross-examination, Diane Macdonald said that the Community Dental Service, which included the claimant, was within the scope of the 1990 (PCS) 8 definition. She accepted that it had applied to the claimant prior to 2013, at which point she said that the position changed. While Noreen Clancy thought that the claimant probably fell outside the scope of the circular, she is employed by a different health board, had no personal knowledge of the claimant’s work or circumstances and did not seem to have appreciated that the claimant’s main base was located at a hospital. Noreen Clancy is the only witness in the case who thought that the claimant’s role fell outside the scope of the circular. The other three witnesses, including the respondent’s HR Director, disagreed.[70]To the extent that those witnesses were offering a subjective opinion as to the meaning of a contractual term, those opinions should be irrelevant on a correct application of the principles of contractual interpretation set out above. However, Diane Macdonald’s evidence could be regarded as confirming the important contemporaneous facts of which both sides were aware at the time of contracting. In other words, the fact that the claimant was a dentist based at a hospital, and the fact that he was also part of community medical staff. On either or both bases he was properly regarded as falling within the scope of circular 1990 (PCS) 8.[71]In my judgment that outcome is also consistent with a purposive interpretation of the contract, which was to apply a different and more elaborate disciplinary procedure to (among others) dental professionals who faced allegations raising issues of professional conduct or competence. There is nothing about the wording or the context of 1990 (PCS) 8 to suggest that there was an intention to apply those procedures to some employed dentists but not others, still less any explanation of the logic of such a position. The Scottish Public Dental Service Terms and Conditions of Service (1 April 2013) and the claimant’s contract of employment (19 February 2014)[72]It was a recurring submission on behalf of the respondent that the collectively agreed Scottish Public Dental Service Terms and Conditions of Service included an agreement that 1990 (PCS) 8 would not apply to dentists who were to become PDS dentists. There is no witness evidence to support that submission. The respondent did not call any witnesses with personal involvement in the negotiation or agreement of those terms, and the submission was directly contradicted by the evidence of David Paul. While the respondent argued that David Paul’s evidence should not be accepted on that point, it gave no reason for doing so except for the words used in Mr Paul’s email of 5 June 2023. I note that those words post-date the agreement of the terms by a decade, so they could only be weak evidence of circumstances in existence at the time of contracting anyway. Further, I do not read them as supporting the respondent’s submission. Mr Paul was clearly arguing in correspondence that 1990 (PCS) 8 should apply, and he did not concede that it was ever agreed that 1990 (PCS) 8 should not apply. It is implausible that a recognised trade union would agree to even a temporary removal of the procedural benefits of 1990 (PCS) 8 without replacement. I read Mr Paul’s words as arguing that 1990 (PCS) 8 applied pending the agreement of a replacement.[73]The written contract of employment signed by the claimant on 19 February 2014 was expressly subject to the National Terms and Conditions of Service “which may be amended by collective agreement from time to time” (clause 3). In my view that shows a joint intention that any collectively agreed changes to the National Terms and Conditions of Service in the future should be incorporated without the need for further agreement by individual employees such as the claimant.[74]There was no variation clause, and so the only routes to binding varied terms would be:a. express agreement between the claimant and the respondent; orb. collectively agreed variations to the Scottish PDS Terms and Conditions of Service, as envisaged by clause 3 of the claimant’s contract of employment and Part 1 Paragraph 2 of the Scottish PDS Terms and Conditions of Service themselves.[75]As for the first limb, no other written terms were agreed by the claimant and the respondent prior to the termination of the claimant’s contract of employment, nor did the parties subsequently agree any variation of the contract signed by the claimant on 19 February 2014. As for the second limb, the relevant recognised trade union was the British Dental Association. As the respondent’s witnesses accepted, the BDA were not consulted on any contractual changes at all, and no such collective agreement was reached. The respondent does not suggest that the Scottish PDS Terms and Conditions of Service were varied by the Scottish Joint Negotiating Forum or any other body constituting “the appropriate negotiating bodies” referred to in Part 1 Paragraph 2 of the Terms. The respondent accepted and emphasised that the Once for Scotland Programme Board had no power or authority to agree variations to contractual terms and conditions.[76]Clause 13 of the claimant’s contract of employment incorporated section 13 of the National Terms and Conditions of Service dated 1 April 2013 and highlighted the availability of the respondent’s own “Management of Employee Conduct (Disciplinary) Policy” from line management or HR. The applicable disciplinary policy for professional conduct or competence allegations after 19 February 2014[77]I accept the claimant’s submission that the procedure set out in 1990 (PCS) 8 applied. While neither side have been able to find a copy of the respondent’s Employee Conduct Policy in force in 2014, it is accepted on both sides that it must have been in substantially the same form as the “Management of Employee Conduct PIN policy April 2012”, which was the latest version in existence at that time.[78]For full details I refer to the findings set out above in relation to paragraph 1.8 of that policy. I will set out a more limited extract to explain my reasoning.[79]It was said to apply to “all medical and dental staff employed by Boards in cases of personal misconduct (as defined in NHS Circular 1990 (PCS) 8). It does not apply to matters concerning the professional conduct or competence of medical and dental staff, which are…[so far as relevant] set out in the following circulars: NHS Circular 1990 (PCS) 8 [and others]…”[80]Consistent with that approach, the model policy at Appendix 1 said: staff and [name of organisation] staff on secondment. It applies to all medical and dental staff in cases of personal misconduct. However, it does not apply to matters concerning the professional conduct of medical and dental staff.[81]I find that the 2012 PIN policy was clear, and that it only applied to employed dental staff in cases of personal misconduct (as defined by Circular 1990 (PCS) 8). In cases raising issues of professional conduct or competence, the procedures in Circular 1990 (PCS) 8 applied. That was the clear personal/professional distinction recognised by the PIN policy, so it was likely to be reflected in the respondent’s own conduct policy applicable in 2014.[82]I also note that the PIN policy did not purport to apply 1990 (PCS) 8 only to a limited class of dentist, but rather to an undifferentiated class of “dental staff”, provided that the case was one of professional conduct or competence. That supports my findings regarding the interpretation and scope of 1990 (PCS) 8 itself. If the respondent’s submission regarding the limited scope of 1990 (PCS) 8 were correct then a similar limitation would be expected in the PIN policy, but there is none.[83]I find on the balance of probabilities that the respondent’s own conduct policy must have been in substantially similar terms in 2014. Since the PIN policies were intended to set minimum standards, the respondent’s own policy would not have derogated from the procedural safeguards guaranteed by the PIN policy.[84]While the respondent’s conduct policy dating from 2014 was not before the Tribunal, later versions were. The policy issued in 2015 and updated in 2017 stated, once again: staff and NHS Western Isles staff on secondment. It applies to all employed medical and dental staff in cases of personal misconduct. However, it does not apply to matters concerning the professional conduct of medical and dental staff.[85]That makes it even more likely that the 2014 version of the respondent’s conduct policy drew the same distinction.[86]The “Once for Scotland” successor policies initially preserved the personal/professional distinction. I refer to my findings of fact above for full details, so I will set out a more condensed summary here. The “Scope” section of the Once for Scotland policy last updated in November 2021 read as follows: medical or dental staff, please refer to the relevant circulars…[87]Once allowance is made for a typo, it is common ground that one of the “relevant circulars” referred to was 1990 (PCS) 8. It follows that “Once for Scotland” policies continued (at least prior to 2023) to apply 1990 (PCS) 8 procedures to cases raising issues of professional conduct or competence in relation to “dental staff”, without distinction between types of dentist.[88]Similarly, the Workplace Investigation Process of the same period said, “This policy applies to all employees, with the exception of medical and dental staff in relation to their professional conduct or competence, for which the relevant policy applies.” That strengthens the conclusion that 1990 (PCS) 8 procedures were to apply to professional conduct or competence allegations against dentists. It has not been suggested that any other policy filled the gap which would otherwise exist.[89]While those policies in 2015, 2017 and 2021 were not in existence at the time the claimant agreed to the 2013 terms, they nevertheless show the respondent adopting a consistent approach to issues of professional conduct or competence in the years that immediately followed, right up until the changes made in 2023. The only plausible explanation is that they correctly reflected the agreed position. I reject the respondent’s submission that the wording was based on a repeated mistake which went uncorrected until 2023, and that it had never been the intention to allow PDS dentists to benefit from the enhanced procedures in 1990 (PCS) 8. There is no evidence to support that submission, even if evidence of subjective intention were properly admissible on the point.[90]That leads to the conclusion that the contract agreed by the claimant on 19 February 2014 incorporated the procedures in Circular 1990 (PCS) 8 where allegations were made about his professional conduct or competence. The claimant’s individual terms incorporated clause 13 of The Scottish Public Dental Service Terms and Conditions of Service which stated: Professional Issues 3. If an adverse report is received from the Dental Reference Officer or from any other source raising professional concerns this will be dealt with through the NHS Board’s Employee Conduct policy in the normal way.[91]For those purposes the potentially ambiguous phrase “the normal way”, must have been intended to apply the procedures in 1990 (PCS) 8, and not those intended to deal with personal misconduct. It was the “normal way” mandated by the PIN policy and known to the parties at the time of contracting. Diane Macdonald accepted that 1990 (PCS) 8 would have applied to someone in the claimant’s situation until 2013.[92]It is difficult to see why section 13 (“Disciplinary Procedures”) of the Scottish PDS Terms and Conditions of service should have preserved the distinction between “Personal Conduct” and “Professional Issues” if the intention were not to apply 1990 (PCS) 8 or some other scheme drawing the same distinction. No other scheme of that sort has been identified at the relevant time, so it must refer to 1990 (PCS) 8. If it had been intended that issues of professional conduct and competence were to be dealt with in the same way as matters of personal misconduct, then there would be no need to split and structure clause 13 in that way at all, and the phrase “normal way” would instead be “same way”.[93]The counter-argument might be to say that if clause 13 of The Scottish Public Dental Service Terms and Conditions of Service had been intended to incorporate 1990 PCS 8 then it could easily have done so explicitly, and that the failure to do so is telling. However, I think there is a cogent explanation for the use of the words “in the normal way”. I accept Mr Paul’s evidence that the expectation at the time was that 1990 (PCS) 8 would be replaced in Scotland at some point by something equivalent to the “Maintaining High Professional Standards” regime applicable in England. The words “in the normal way” were most likely intended to have meant, in effect, “1990 (PCS) 8 or any replacement for it”. While the words are ambiguous when considered in isolation, that is the objective interpretation that a reasonable observer, aware of the context, would have adopted.[94]I also find that the continued use of 1990 (PCS) 8 after 2013 made both common sense and industrial sense. There had been a long-established practice of treating issues of professional conduct and competence differently from personal misconduct. There is no evidence to suggest a common desire to reduce the procedural safeguards for dentists in professional conduct and competence cases. On the contrary, the long-term objective was to come up with a replacement for 1990 (PCS) 8, and not to abolish the personal/professional distinction altogether. Changes to the Once for Scotland Policy on 1 August 2023[95]I can deal with this shortly. The policy changes were insufficient to effect a change in the claimant’s terms and conditions, including the contractually guaranteed procedure for handling allegations of professional conduct or competence.a. There was no express agreement between the parties (i.e. the claimant and the respondent) to vary the claimant’s contractual terms in that respect.b. I did not understand the respondent to argue that the claimant had acquiesced through conduct or silence to a variation proposed unilaterally by the respondent. I see no evidence to support such an argument.c. The claimant’s individual contractual terms did not provide for variations of his contractual terms merely through the publication of policies by the respondent or any other body, such as the “Once for Scotland” Programme Board. That was not a permissible mechanism of variation.d. There was no collective agreement varying terms and conditions in that respect. The 2013 terms envisaged the possibility of variation by collective agreement by “the appropriate negotiating bodies, principally the Scottish Joint Negotiating Forum (SJNF) and are approved by Scottish Ministers after considering the results of such negotiations.” The 2014 contract also envisaged the possibility of variation by collective agreement but was not as explicit regarding the procedure. No relevant collective agreement was reached at any point. The recognised trade union, the BDA, was not consulted at all prior to making the changes.e. The consistent evidence of the respondent’s witnesses was that the Project Board was not engaged in collective bargaining, and that it had no power to vary contractual terms. The claimant’s case is precisely the same in that respect.f. The claimant’s contract of employment did not expressly incorporate policies issued after the date of contracting unless they were reflected in collective agreements. Clause 13 did not, for example, incorporate “such disciplinary policies as may be issued by the respondent from time to time”. Therefore, there is an important difference between collective agreements properly so-called, and policies agreed by tripartite working groups. The former would be incorporated by express reference, but the latter would not. The former would gain contractual status as a matter of individual terms and conditions, but the latter would not.g. Finally, it was accepted in the respondent’s written submissions that “Once for Scotland” policies were neither contractual nor intended to change contractual terms and conditions.[96]Even if the 2023 revision to the Once for Scotland Policy had been effective to vary the claimant’s individual terms and conditions of employment, I would have found that the relevant provision was too vague to deprive him of the benefit of 1990 (PCS) 8 which he had formerly enjoyed. It purports to weaken the application of 1990 (PCS) 8 by saying that it applies only to “some dental staff”, but they are not defined, so it is wholly unclear from that phrase who does qualify and who does not. The ambiguity should be resolved against the respondent, since they seek to rely on it. I find insufficient evidence to support a conclusion that a reasonable observer, aware of all the relevant circumstances in 2023, would think that the parties jointly intended to exclude the claimant’s role from the protection of 1990 (PCS) 8 procedures.[97]Further, the disciplinary process had already begun by the time the changes to the Once for Scotland Policy were made. The claimant was notified of an investigation on 13 January 2023 and the conduct was classified in a letter of the same date. Additional allegations were added 10 days later. The claimant was eventually suspended on 12 July 2023. The NHS Scotland Workforce Conduct Policy was updated with revised wording on 1 August 2023. I will go no further for the purposes of this decision, but a Tribunal applying the test of fairness in section 98(4) ERA 1996 would need to consider whether altering the applicable procedure to the employee’s detriment during a disciplinary process was an approach which fell within a reasonable range of procedures. I express no view, since that is not something I need to decide to deal with the preliminary issue.
Conclusion
[98]The claimant was contractually entitled to have the charges against him dealt with in accordance with the procedures set out in NHS Circular 1990 (PCS) 8. The published alterations to the Once for Scotland conduct policy were ineffective to vary the claimant’s contractual terms in that or any other respect. I have summarised my conclusions in the diagram in the attached Appendix. _____________________________ M Whitcombe Employment Judge 29 December 2024 APPENDIX Sources of contractual terms Policies NHS Circular No. 1990 (PCS) 8 1990 (PCS) 8 incorporated by SPDS Ts & Cs on their true construction as the established “normal way” for professional conduct and competence cases. “Once for Scotland” Scottish Public Dental Service NHS Scotland Conduct Terms and Conditions of Service Policy 1 April 2013. 2020, 2021 & 2023 Collectively agreed and approved by Scottish Government. May be amended by negotiation by the “appropriate negotiating bodies” Management of Employee Conduct PIN ses 3 & 13 Policy 2012 SPDS Ts&Cs incorporated by clauses 3 and 13 of the individual contractual terms signed on 19 February 2014 No effect on contractual terms. Individual terms and conditions Signed by claimant on 19 February 2014 Respondent’s employee 40 conduct policy
The relevant law
[99]There is no doubt that the relevant provision is section 98(4) of the Employment Rights Act 1996 that, the respondent having shown that the reason for dismissal was one of the potentially fair reasons referenced at 98(1) and (2), “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 sufficient reason for dismissing the employee and(b) shall be determined in accordance with equity and the substantial merits of the case”.[100]Conduct is one of the potentially fair reasons for dismissal. In a dismissal for misconduct, in British Homes Stores Ltd v Burchell [1980] ICR 303 the EAT held that the employer must show that: i) they believed the employee was guilty of misconduct; ii) they had in mind reasonable grounds upon which to sustain that belief, and iii) at the stage at which that belief was formed on those grounds, they had carried out as much investigation into the matter as was reasonable in the circumstances.[101]In considering the reasonableness or unreasonableness of the dismissal the Tribunal must consider whether the procedure followed as well as the penalty of dismissal were within the band of reasonable responses (Iceland Frozen Foods Ltd –v- Jones [1982] IRLR 439). The Court of Appeal has held that the range of reasonable responses test applies in a conduct case both to the decision to dismiss and to the procedure by which that decision was reached (Sainsbury v Hitt 2003 IRLR 23).[102]Mr Hay accepts in this case that the respondent has established that the reason for dismissal was a genuine belief in the claimant’s misconduct. The focus of the claimant’s challenge relates to the second and third limbs of Burchell, which as Mr Hay pointed out, tend to overlap, as does the question whether the procedure adopted was reasonable in the circumstances. The broad question is whether the steps the respondent took to inform itself prior to dismissal are reasonable.[103]While Mr Hay accepts that the failure to apply the correct process (even in breach of contract) will not automatically lead to unfairness, he argues that it is highly relevant in the overall assessment. He invited the Tribunal to find that the respondent had failed to give proper weight to the fact that the claimant had a contractual right to a particular process. He submitted that the failure to apply that process is sufficiently weighty in its own terms to lead to unfairness in this case, but also that the manner in which the respondent caused the process to develop caused unfairness in a more nuanced way.[104]In broad terms, Mr Gibson’s position is that the claimant had a fair process applied to him, but considering procedural and substantive fairness beyond that, the sanction of dismissal in this case fell within the range of reasonable responses.[105]Mr Gibson relied in particular on the decision of the Court of Appeal in the case of Westminster City Council v Cabaj 1996 ICR 960. In that case, a dismissed employee’s contract of employment entitled him to appeal against dismissal to a tribunal comprising three members of the council, but the appeal was heard by only two council members. The employment tribunal found that this was a procedural error but that the respondent had nevertheless acted reasonably in dismissing the employee. Allowing an appeal, the EAT held that the composition of the council’s appeal tribunal was a contractual requirement and therefore the defect was not merely procedural, the EAT deciding that the defect was so fundamental that the tribunal could only conclude that the dismissal was unfair, without the need to remit. The Court of Appeal allowed the council’s appeal, finding that the relevance of the failure to provide an appeal to which the employee was contractually entitled was whether the employee had thereby been denied the opportunity of demonstrating that the real reason for his dismissal was not sufficient; and that a finding that dismissal was unfair was not inevitable, so the matter was remitted for fresh consideration.[106]Mr Gibson relied in particular on paragraphs in that decision which underlined the requirement for the tribunal to focus only on the employer’s action in treating the reason as a sufficient reason for dismissing the employee. It is that action and that action only that the tribunal is required to categorise as reasonable or unreasonable. That leaves no scope for the tribunal considering whether, if the employer had acted differently, he might have dismissed the employee. It is what the employer did, given the circumstances known at the time of dismissal, which is to be judged, not what he might have done.[107]Mr Hay relied on the decision of the Court of Appeal in the case of Welsh National Opera Ltd v Johnston 2012 EWCA Civ 1046, which he submits gives guidance on the weight to be given by the failure of a respondent to follow a contractually agreed process. In that case the respondent’s failure to apply a particular procedure, namely the “artistic performance procedure”, led to the Court of Appeal concluding that a finding of procedural unfairness was inevitable.[108]Mr Hay also relied on the decision of the EAT in the case of Awan v ICTS (UK) Ltd 2019 ICR 695, that “dismissal in breach of contract is not necessarily unfair but the contractual position is relevant as part of the circumstances against which the reasonableness of the respondent’s actions fall to be judged”. Mr Hay, relying on a reference to the relevance or otherwise of the particular breach falling within a spectrum ranging from the mildly relevant to the very relevant, submitted that the breach of contract here is very relevant indeed, as it was in the Awan decision.[109]Mr Gibson submitted that the Welsh National Opera case relied on by the claimant is nothing more than the application of the principles from the Cabaj case; it did not overrule it; there is no discussion of the legal authorities, with Awan confirming in terms dismissal in breach of contract is not necessarily unfair.[110]I agreed with Mr Gibson that these are examples of the application of the principle from Cabaj. In any event, both cases appear to focus on the contractual question, that is whether there was in fact a contractual entitlement to a particular process (or implied term) (which was determined in this case at the preliminary hearing) rather than the question whether dismissal was unfair in the particular circumstances. Application of the law to the facts[111]Mr Hay relies on the Cabaj case as referenced in particular in the Awan case, specifically in regard to the “spectrum of relevance” of the type of breach of contract. Mr Gibson accepts that the fact that there has been a breach of contract in this case is not entirely irrelevant, but rather argues that it is to be considered in context and it only comes into play if by denying the right it thereby created unfairness.[112]Notwithstanding, I accepted Mr Hay’s submission that the fact that the process which was applied in this case was in breach of contract was very relevant to the fairness question.[113]Mr Hay submits that the failure to apply the correct procedure in breach of contract was sufficiently weighty in its own terms to lead to unfairness in this case. To support that submission, Mr Hay relies in particular on the Welsh National Opera Ltd decision which has parallels with this case because the correct contractually agreed procedure involved additional requirements. In particular Mr Hay relied on the conclusion that, “in effect, the parties to that agreement had decided that a fair procedure in relation to below standard artistic performance required that objective element”. In that case, that meant that musicians appointed independent of the respondent would be on the panel, and absent that, the Court of Appeal held that a finding of procedural unfairness was inevitable. The Court of Appeal states that the purpose of the particular procedure “was to protect a musician from too subjective an assessment of his performance”. As I understood it, it was decided that could only be guaranteed by the additional steps in procedure which had been agreed, with independent panel members required to guard against a subjective assessment (of musical performance), and ensure objectivity.[114]On this question of whether a fair procedure in this case could only be guaranteed by adopting the additional steps in annex C, it seems to me to be highly relevant in general terms that in this case the allegations relate principally to “professional conduct” and to a much lesser extent, if at all, to “professional competence”. I did note that at least one aspect of Ms Mackenzie’s rationale for proceeding under the WFCP was her belief that this was a case which related to the claimant’s professional conduct and not his professional competence.[115]In the circumstances of this case, I did not therefore agree that a fair procedure could only be ensured where the investigation was undertaken by an entirely independent professional panel, as discussed further below.[116]Mr Hay also argues that the fact that the respondent was put on notice that the process adopted was the wrong one is significant in this case in terms of the question of unfairness. In particular, the respondent was put on notice early in the process that the procedure was defective by both the BDA and the MDDUS. The one matter identified in the appeal was the process adopted. Concerns about the process have been highlighted all the way through. The respondent was thus put on notice that the distinction between WFCP and PCS8 made a difference; and that distinction, he argues, strikes at the reasonableness of the substance of the overall process. Mr Hay invited the Tribunal to consider the implications of the specific differences, by reference to the decision of Taylor v OCS 2006 ICR 1603, and how that bears on the fairness of the whole disciplinary process, examining any subsequent procedure with particular care where it is found at an early stage that the process was defective in some way, considering procedural fairness along with issues of substance.[117]Mr Gibson submitted that the approach advanced by Mr Hay was to invite the Tribunal to fall into the error of deciding for itself what would have happened had annex C been followed, and that, applying the principles from Cabaj, the Tribunal should not trouble itself with a reconstruction of what would have happened if annex C had been followed. Specifically, he stressed that it is not appropriate for this Tribunal to consider whether dismissal was fair or unfair on the basis of what the employer might have done.[118]Taking account of that caveat, I was of the view that it was important to consider carefully the differences between annex C and the procedure which was adopted to assess the extent to which the procedure which was adopted in this case resulted in procedural - and/or substantive – unfairness. Comparison with annex C[119]Annex C sets out the procedure for serious disciplinary cases involving professional conduct and professional competency of dental staff. In cases involving professional conduct or competence, where the “chairman of the health board” on considering the allegation decides that a prima facie case exists, “if there is no substantial dispute as to the facts” then the procedure set out in annex C “would normally be unnecessary”.[120]Mr Gibson submitted that, given in this case there was no substantial dispute as to the facts, then that would mean that the annex C procedure would not need to be resorted to at all, so that an investigating panel of the sort described there would have been unnecessary.[121]Mr Hay argues that it is not a high threshold and that the panel process would have been engaged in this case. Here, there are a number of facts which are admitted but still others in respect of which there is sufficient dispute to trigger the claimant’s entitlement to a panel.[122]I did not agree with Mr Gibson that, at the point at which this matter would have been considered by the respondent, it would have been evident that there was no dispute on the facts. I accept therefore that there was sufficient dispute on the facts in this case to have required that the annex C inquiry route be followed.[123]Annex C, at paragraph 9, requires that “an investigating panel…should be set up by the Health Board responsible for appointing the practitioner. No member of the panel should be associated with the Health Board in which a community dentist works…the panel should normally consist of up to five persons, including a legally qualified chairman, not being an employee of the health board or of the relevant Scottish Government department”.[124]Paragraph 9 also requires, “In cases involving professional misconduct”, that “membership of the panel other than the chairman should be divided equally between professional and lay persons….In cases concerned solely with professional competence, all panel members (other than the chairman) should be medically or dentally qualified and it will normally be appropriate for at least one of their number to be in the same or an allied speciality to that of the practitioner whose professional competence had been called in question. It may also be appropriate for one of the members to be a practitioner from another hospital in the same grade as the practitioner whose competence is the subject of enquiry. The professional members should be nominated by the appropriate professional body…..in the case of a dentist the SJCC or the appropriate group of the British Dental Association would provide the nominations”.[125]In this case there was no independent legally qualified chairman appointed, and to the extent that there was an investigating panel, it consisted of three people, only one of whom was independent of the respondent. Further, as Mr Hay pointed out, while the engagement of Peter Ommer meant that there was at least one professional on the panel, he was apparently selected by Joanne Bark, an employee of the respondent. Further Peter Ommer was not at the same professional level as the claimant in respect of sedation and orthodontics.[126]While the claimant accepts that this is not a case which is concerned solely with professional competence, and therefore that all panel members need not have equivalent professional qualifications, otherwise membership of the panel should be divided equally between professional and lay persons, and the professional members nominated by the BDA (even where the whole panel is not composed of professionals, as might be suggested is the correct interpretation of paragraph 9 but if that were the case there is no provision relating to how professionals are otherwise nominated). If that is correct, then Peter Ommer was not appointed in compliance with these provisions because he was appointed by NHSWI.[127]Mr Gibson argued that, while the claimant submits that he was entitled to a different panel in terms of annex C, and while the panels used under the WFCP were not in line with annex C, the panels used were experienced and objective, and did not deprive the claimant of any right which amounts to unfairness. In any event, the panel which was convened included Mr Ommer and that Mr Gibson argues was sufficient to give the safeguards needed.[128]I accepted that the requirements of this paragraph, including the fact that the one professional member of the panel who was not employed by the respondent was appointed by the respondent, were not met. I did not however consider that the panel which was convened resulted in any inherent unfairness to the claimant in the particular circumstances of this case. As noted above, I am of the view that it is significant that the allegations relate principally to “professional conduct” and to a much lesser extent, if at all, to “professional competence”.[129]I accepted Mr Gibson’s submission, that to the extent that professional input was required, that sufficient safeguards were in place with Mr Ommer being present at the claimant’s interview and reviewing the report. While Mr Ommer has apparently lesser qualifications than the claimant in regard to sedation and orthodontics specifically, no technical input was required on those topics. The case was not about professional practice in the orthodontics sphere and to the extent that it was about sedation practices, it was about procedure in regard to sedation practices and whether should have been sedation at all.[130]Turning to subsequent paragraphs, paragraph 11 states that “the investigating panel should seek to establish all the relevant facts of the case. At the hearing the practitioner should appear personally before the panel and hear all the evidence presented to it. Both the practitioner and the health board may be represented, legally or otherwise….[and] may call witnesses….who may be cross-examined before the panel”.[131]This meant that the claimant would have been present at the interviews, could have been legally represented, could have called and cross examined witnesses, all in the presence of relevant independent professionals. Mr Hay submitted that while the engagement of Peter Ommer meant that there was an independent professional on the panel, his involvement was restricted to the claimant’s interviews, and not the others, and he only did “some sense checking” of the final draft of the investigation report. Under annex C, a professional member who was part of the enquiry panel would be tasked with hearing all of the evidence.[132]With regard to the claimant’s submission that he should have had a right to be present and to cross examine witnesses, Mr Gibson argues that there was no such contractual right under annex C because paragraph 12 states that the chairman decides on the overall procedure. Mr Hay did not accept that but suggests that even if the claimant did not have the right to cross examine witnesses, he would in terms of annex C have been present at each of the interviews.[133]As to the significance of the fact that the claimant did not attend the interviews of the other witnesses (and could not cross examine them, if he had been permitted or entitled to do that) and the fact that no independent dental professional attended those interviews, as noted above, I considered it to be highly relevant that essentially none of the allegations related specifically or solely to professional competence matters as opposed to matters of professional misconduct. That clearly applies to the allegations related to completion of time sheets; following a direction from a superior; breaches of data security; comments made to members of the public and about colleagues; use of expired medical products; storing of hazardous material; ordering dental supplies; keeping of records and property at home. The closest the allegations come to being related to professional competence are in respect of the claimant’s sedation practices, and the correct use of a collimator, but these broadly related to compliance with guidelines not to questions involving dental skills, where there where may have been a requirement for independent professional input.[134]In any event Mr Ommer was clearly eminently well qualified to comment on professional competence issues to the extent that they arose. The fact that he did not have equivalent qualifications in sedation and orthodontics I considered to be irrelevant in the circumstances of this case. Even the allegations relating to sedation were not about sedation practices as such but about the correct procedures for their use (or otherwise). To that extent, the claimant’s professional competence was not called into question at all.[135]Accordingly, I did not consider, in the particular circumstances of this case, that the absence of a panel composed in the way suggested, has resulted in any unreasonableness or unfairness, and nor did the fact that the claimant did not attend the interviews of the other witnesses.[136]Paragraph 13 requires the report to be in two parts, one setting out the relevant facts and the panel’s findings, but contain no recommendations as to action. The second part should contain a view as to whether the practitioner is at fault and should explain the basis on which this finding is reached. At the request of the Health Board the second part of the report may contain recommendations as to disciplinary action. “In no circumstances should the investigating panel itself be given disciplinary powers”.[137]By paragraph 14, the claimant would have had a right see the first part and to make proposals regarding the correction of facts, unlike the WFCP process, where the claimant had no opportunity to comment on the factual findings of Angus Maclennan before the report was finalised.[138]Mr Hay’s position was that the claimant was not given any opportunity to consider the “findings in fault” of the investigating panel in this case. Mr Gibson’s position was that given that the claimant had been sent all of the notes from the interviews (apart from that of Mr John Lyon) before his own investigatory interview, he had the opportunity at least to refute what was stated there or indeed, as Mr Gibson submitted, to invite Mr Maclennan to call other witnesses, or request further investigation. Further, the claimant could have attended the conduct hearing and asked Fiona Mackenzie to look into matters. Mr Gibson argued that there was no actual unfairness when the claimant did not ask for any witnesses; and while the process adopted did not involve that step at paragraph 14, the claimant effectively had the opportunity to challenge the findings in fact and to make claims of unfairness both at the investigation stage and the conduct hearing stage. Mr Hay in response stressed that there is no duty on an employee to take steps to put right an employer’s defective process at the time it is being carried out.[139]While I accept Mr Hay’s point that it is not for the claimant to make right defects in procedures, I agreed with Mr Gibson that the claimant had been given sufficient opportunity for him to make his position clear in the investigation report which formed the basis of Ms Mackenzie’s decision. He was given subsequent opportunities to input, as discussed further below.[140]Significantly as Mr Gibson pointed out, even where such a report is produced following such a procedure, it is the health board which makes the decision regarding disciplinary sanction.[141]Mr Hay also referenced Annex D which he said would have allowed for an appeal to the Secretary of State. He argued that even if his interpretation of other differences of procedure, this was such a departure from the agreed process that it was in and of itself an unfairness.[142]Mr Gibson said that this was not his understanding of Annex D, and that this appeared to be an amendment to terms and conditions which have not been referenced, that it is a “free floating” term which has not been seen in context, and that it is a new element to the claimant’s case, it not having been referenced in his pleadings.[143]I agreed that there was a lack of clarity about the circumstances when a practitioner might be entitled to such an appeal, and the fact that this had not been foreshadowed as an aspect of the claimant’s case which was to be relied on indicated that it was not as significant as Mr Hay sought to suggest. Accordingly I did not agree that the absence of this step contributed to procedural unfairness.[144]Mr Hay went on to argue that, if that was not sufficient to lead to unfair dismissal, the unreasonableness of the decision to dismiss was further demonstrated by what happened thereafter, leading not only to procedural but also substantive unfairness.[145]Mr Hay argued that the fact that the respondent was put on notice that annex C was the correct procedure to be followed, and that the procedure followed was defective and that the distinction between the two procedures made a difference, was indicative of unfairness and that the distinction strikes at the reasonableness of the overall process (by reference to Taylor v OCS). As I understood his argument that related in particular to the inevitability or at least the reasonableness of the claimant making a decision to withdraw from the process.[146]He argued that it must be recognised that the claimant participated because of his belief in his professional responsibilities as required by the GDC but on the understanding that this pressing ahead was in breach of his contractual rights. It was entirely understandable that anyone in that position would fear the consequences of being seen to be unco-operative, and it was not the employees job or duty to assist the employer in repairing its defective process, especially in circumstances where his withdrawal from the process was reasonable. He argued that it should have been clear to the reasonable employer that the process adopted caused the claimant to lose confidence in the fairness of the process leading him to withdraw from it and this caused the process to be fundamentally flawed. That was made crystal clear in the BDA letter dated 18 January 2024. The respondent was confronted, as a result of their own actions, with a process with no further participation from the claimant. This had the inevitable result that additional information which could have been presented by the claimant would have been considered but was not.[147]Mr Hay argued that this pressing ahead was to the claimant’s further detriment in a number of ways when a number of the allegations are considered. This is because it is clear that the claimant could have advanced further evidence in defence if he was engaging and had not withdrawn from the process. That included evidence about the delay of the delivery of machinery; further explanation of the degrees of harm in relation to exposure to either gases or x-ray; more evidence about what mitigation measures were in place especially in relation to the scavenging unit especially the letter from Ms Pickles; and finding sources for the basis of carbon dioxide assessing the number of air changes.[148]Further, at the stage of the claimant’s investigatory interview, there were a number of factual disputes or explanations advanced orally or in his written statement which were not explored by Ms Mackenzie due to his withdrawal, e.g. in regard to allegation 1, there was no further investigation into the claimant’s assertion that Colin Robertson had said (in regard to the time sheets) that the easiest thing to do was to fill in the time sheets that he had worked 9-1 and 2-5 instead of what he was actually doing; with regard to allegation 10, the claimant asserted that Colin Robertson and Eric Macdonald knew and approved of the claimant storing records securely at this home; in regard to allegation 4, there could have been further investigation into where the conversation between the claimant and Joanne Bark took place to establish the context; and likewise the interactions with her parents.[149]Further, with regard to allegation 1, Mr Hay pointed out that the claimant was not made aware of the evolution of a charge of fraud to a conviction of dishonesty in regard to the completion of time sheets. The first the claimant was made aware of the charge of dishonesty was on receipt of the Fiona Mackenzie outcome letter. The claimant had seen the Maclennan report which recorded that there was no evidence to support the fraudulent claim, and while hours recorded were not accurate, there was no reference to dishonesty. The reasonable reader of allegation 1 of Angus Maclennan’s report would take the view that allegation would not be advanced but the claimant was unaware of Ms Mackenzie’s developing view on that allegation until after the decision was intimated.[150]On the general argument advanced by Mr Hay I did not accept that the failure of the respondent to further investigate these would have had the result in making a reasonable procedure be otherwise unreasonable. Nor did I agree that failure to further investigate this matter lead ultimately to substantive unfairness. This is not least because the claimant contributed and presented what was clearly a carefully considered written statement which he was given many opportunities to revise.[151]In any event, these points of concern relate to aspects of allegations 1, 4 and 10, however other allegations were upheld on the basis of the information which had been supplied by the claimant as well as the broader investigation.[152]In this case the respondent conducted a thorough and comprehensive investigation of the allegations. Mr Maclennan interviewed everyone involved in the events. He interviewed the claimant who was represented by an employee relations officer from the BDA. By that time the claimant (and his union) had seen copies of all of the interview notes (except it seems the notes of the interview with John Lyon), as well as all of the other relevant documentation. The claimant was invited to provide a written statement. As it transpired, the claimant used a written statement to inform his contribution at the first interview on 7 September, and he agreed to submit that, which he did the day prior to the resumed interview on 29 September. The claimant was given the opportunity to submit further documents and correspondence referenced during that interview and any other correspondence or documentation which he considered relevant. He was sent a copy of the interview notes and entitled to submit an addendum. He was then given the opportunity to submit a revised version of that written statement, which he did on 30 November. That written statement purports to be a full and frank explanation of his position regarding the allegations and includes sections in relation to each one headed “reflection and learning”.[153]Those reflections can only be read as the claimant having admitted to certain of the allegations at least upon which the decision turned. It contains what are effectively admissions of at least aspects of the allegations, and along with the investigation report, it was relied on by Ms Mackenzie to come to the conclusions which she did.[154]The claimant could have attended the conduct hearing effectively “under protest”, recording his disagreement with the process but while still participating to safeguard his interests. In any event, by and large, the claimant did not retreat from his position as set out in that written statement in this hearing. The further contributions of the claimant at this hearing was largely to further explain why he did what he did (which may be relevant to mitigation, as discussed further below) but not that he did not do what he said he had done.[155]Accordingly, I concluded that the respondent’s genuine belief that the claimant was guilty of misconduct was based on reasonable grounds and followed a reasonable investigation. I accordingly find that the second and third limbs of the Burchell test are met. I also conclude, on the basis of the above, that the procedure adopted by the respondent was reasonable in the circumstances and did not result in any inherent fairness. Was the sanction of dismissal within the range of reasonable responses[156]I then turned to consider whether the sanction of dismissal was reasonable in the circumstances.[157]Ms Mackenzie concluded that allegation 3 was not upheld, that 1 and 5 and 6 and 8 were upheld in part, and that allegations 2, 4, 7, 9 and 10 were upheld. She concluded that the claimant’s actions and behaviour met the definition of gross misconduct in the WFCP, and quoted relevant examples from the policy. She also concluded that the claimant’s actions and behaviour were deemed to be unprofessional conduct in terms of the GDC standards. In particular she found that allegations 2, 4, 7, 9 and 10 constituted gross misconduct.[158]In response to questions from Mr Gibson, Ms Mackenzie advised that she considered that allegations 2 and 7 were in themselves gross misconduct sufficient to warrant dismissal.[159]Ms Mackenzie advised in the outcome letter that she had taken into account mitigating factors which the claimant had advanced in interview and his written response, which included reflection and learning. Mr Hay stressed that the fact that the claimant had (reasonably in his submission) withdrawn from the process meant that certain considerations relating to mitigating factors were not considered.[160]These included the fact that the claimant’s supervisor Colin Robertson was almost entirely absent due to the breakdown in relations not only with the claimant but also with the dental nurses. I note however that this was a matter which was referenced in the investigation report by Mr Maclennan. While I accept that there was no reference to the challenges posed of caring for his elderly mother, this was not something which the claimant felt the need to include in his written submission, and nor was there any reference explicitly to being under stress (in regard in particular to allegation 4) although that may be said to have been implicit.[161]Mr Hay relied on the deficiencies referenced above in regard to the further evidence which the claimant could have advanced had he not (reasonably) withdrawn from the process. It was clear from the evidence, discussed above, the claimant himself could have advanced further evidence in mitigation if he was engaging and had not withdrawn from the process, set out above. In particular, in regard to allegation 7, it was observed that it was “unlikely” that the limits of gas emissions had been breached; in regard to allegation 9, the material before respondent stated that degree of exposure negligible. Further evidence, he submitted, could have been advanced regarding the significance of these risks.[162]While Mr Hay accepted that these factors may not provide complete exoneration, he argued that they could have been relevant to the degree of culpability in regard to any of the allegations which may have a bearing on whether dismissal in the circumstances was reasonable.[163]I noted however that Ms Mackenzie had listed in detail the substantive mitigations relied on by the claimant, and had thus taken them into account. In regard to allegations 7 and 9 in particular, which she founded amounted to gross misconduct, considerations of the extent of exposure and the extent of gas emissions were only one aspect of those findings.[164]I noted that Ms Mackenzie had also considered alternatives to dismissal, but concluded, “given the seriousness, nature and extent of the issues identified, and the resulting breakdown in trust and confidence, that this could not be sanctioned”, finding that any alternatives “would not satisfactorily remedy the issues nor would they be the appropriate organisational response”.[165]The claimant found himself in a difficult situation. It is to his credit that he engaged with the investigating process believing that it was in accordance with his professional duties, despite the position of his union representatives. It is very unfortunate that the claimant’s case was apparently being used to make a point at a higher policy level in a union/government dispute. I agreed with Mr Hay that the contribution of Mr Paul at the appeal hearing was little short of extraordinary. It is little wonder that the claimant was disappointed in the service he got from his union. However, as noted above, I agreed with Mr Gibson that the claimant could have participated had he more to say in the process while still recording his disagreement with the use of the WFCP to determine disciplinary.[166]Mr Hay’s arguments while on the face of it persuasive, were not when analysed as above sufficient to convince this Tribunal that the respondent’s decision fell outwith the range of responses open to them. In particular, I was not persuaded that further information which might have been advanced at the conduct hearing on behalf of the claimant, or further exploration of mitigating factors as outlined by Mr Hay, would have meant that the sanction of dismissal for gross misconduct would thereby fall outwith the range of reasonably responses open to the respondent.
Conclusion
[167]I therefore conclude, in all the circumstances, that dismissal for gross misconduct was within range of reasonable responses open to the respondent, and therefore that the dismissal was not unfair. The claim is therefore dismissed.