“In support of this, the Council suggests that an employee should have the right to be represented, other than at the purely investigative stage.”
“Employees should be given reasonable advance notice in writing of the date and time of a disciplinary hearing”
“DISCIPLINARY PROCEDURES 189. Wherever possible, any issues relating to conduct and capability should be identified and resolved without recourse to formal procedures. However, should an employing authority consider that a practitioner’s conduct and capability may be in breach of the authority’s code of conduct, or that the practitioner’s professional competence has been called into question, the matter will be resolved through the authority’s disciplinary or capability procedures (which will be consistent with the ‘Maintaining High Professional Standards in Modern NHS’ framework), subject to the appeal arrangements set out in those procedures. Any allegations of misconduct against, or capability concerns about, a doctor or dentist in a recognised training grade should be considered initially as a training issue and dealt with via the educational supervisor with close involvement of the postgraduate dean from the outset.”
“In the first instance where there are concerns around conduct, performance and professional competence, employers and host organisations should advise the Postgraduate Dean of any postgraduate doctor in training who is experiencing difficulties as well as the action being taken, including steps to support and remedy any deficiencies. Where appropriate, the Postgraduate Dean, employers and host organisations will work closely together to identify the most effective means of helping/supporting the individual while ensuring that patient safety is maintained at all times. There may be a need for early involvement of services such as the Professional Support Unit provision in NHSE WTE, NES, HEIW and NIMDTA or NHS Resolution (formerly the National Clinical Assessment Service) to provide advice about how best to support the process.” (I have added the italics) At clause 5.13 this was written: “5.13 On occasion, the concerns about a doctor may be enough to warrant referral to the GMC’s fitness to practise process. Postgraduate doctors in training, in common with all doctors, may be subject to fitness to practise investigation by the GMC and adjudication by the Medical Practitioners Tribunal Service.”
“Employees have the right to be supported/accompanied at the hearing by a trade union representative or a work colleague.”
“inappropriate and unprofessional behaviour leading to colleagues feeling vulnerable and uncomfortable in the work environment”
“Under the terms of the Trust’s Maintaining High Professional Standards Policy, you have the right to be accompanied at any meeting by someone who may be another employee of the NHS, Trade Union representative or member of a medical defence organisation. The companion may be legally qualified but he or she will not be acting in a legal capacity.”
“During the misconduct hearing, you will have the full opportunity to respond to the allegations and present any information, evidence, or mitigating circumstances you wish the panel to consider.”
“(a) The court will be prepared to intervene in a disciplinary process if it is demonstrated that the proceedings are being conducted on a basis which makes their conduct a breach of contract such that the pursuit would also be a breach. … (b) … in my view they have to be breaches or errors which make the continued pursuit unfair in a manner which cannot be remedied within the proceedings themselves. (c) Nonetheless, the court will not “micro-manage” an employment disciplinary procedure.” 49. Furthermore at [87] Green J ruled thus: “The authorities make it clear that the court can intervene in an employment dispute resolution procedure where there is sufficient unfairness. However, an employee cannot assume that it will always intervene whenever there is unfairness. If the procedure is capable of ironing out the unfairness then the court may well leave it to do so. As appears from the above authorities, the court will not micro-manage employment disputes. Because of the delays which are capable of arising if interim relief is to be given, this point becomes a factor in considering the desirability of giving interim relief. The overall balance of convenience may well favour letting the procedure run its course if the unfairness lacks enough severity. In the present case, for example, there is to be a disciplinary hearing and then there is a possible appeal. Those are stages which are capable of considering unfairness, even if there is a technical breach of contract. Then at the end of the road there is the availability of an unfair dismissal claim in the Employment Tribunal. While this may not investigate fully the merits of the reasons for dismissal, it would certainly be able to consider the merits of the operation of the procedure (see, for example, A v B, above).”
“In my judgment the Tribunal in dealing with the question of the sufficiency of evidence fell into the trap which it has so carefully advised itself against, namely it proceeded to substitute its own view for that of the reasonable employer and overlooked the true test, as set out by Arnold in British Home Store v Burchell (supra), where he said: 'First of all, there must be established by the employer the fact of that belief [that is, belief in the employee's guilt): that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.'”
“It is quite clear in this case that a careful investigation was carried out by Mr Campbell, an appeal was heard by Mr Wilson, and a most meticulous review of all the evidence was carried out as is evidenced by Mr Heubeck's letter of 31.12.85. As I have indicated, in that letter Mr Heubeck meticulously reviewed all the evidence, and considered whether there was any reasonable possibility, indeed any possibility, that a mistake had been made. What the Tribunal appears to be suggesting is that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses, and cross-examination of witness. While some employers might consider this to be necessary or desirable, to suggest as the Tribunal did, that an employer who failed to do it in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside: '... a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view,' is in my view insupportable.”
“Although strict compliance with every aspect of natural justice (ie (i) nature of accusation known to accused; (ii) opportunity to state case; (iii) decision-making body acting in good faith) is not necessary, a fundamental breach of the rules of natural justice may well render a dismissal unfair; Haddow v Inner London Education Authority[1979] ICR 202 , EAT; Taylor v Alidair Ltd[1978] IRLR 82 ,[1978] ICR 445 , CA; Campion v Hamworthy Engineering Ltd[1987] ICR 966 , CA. In Slater v Leicestershire Health Authority[1989] IRLR 16 , CA, Parker LJ observed (at p 19) that '[t]he rules of natural justice in this field do not … form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [tribunal] consider the question raised in s 57(3) of the Act'”
“34. First, the power to investigate allegations of misconduct and to discipline employee is conferred “by reason of the hierarchical nature of the relationship” between employer and employee (Christou and Ward v London Borough of Haringey[2013] EWCA Civ 178 paragraph 48). It exists as part of the “power vested in the employer to manage employees” (Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust[2015] EWHC 3096 paragraph 16). That has two consequences. It means that contractual provisions dealing with disciplinary processes should be interpreted on the basis that their underpinning “purpose … is to facilitate the employer’s managerial power” (Al- Mishlab paragraph 16). It also means that where contractual procedures are silent on a point, the fallback position is that they are determined as a matter of the employer’s managerial discretion (Al-Mishlab paragraph 16 and McMillan v Airedale NHS Foundation Trust[2014] EWCA Civ 1031 paragraph 54). 35. Second, the fact that the underlying purpose of disciplinary processes is to facilitate the employer’s managerial power, does not mean there is no obligation on the employer to act fairly. In contracts such as the present, that contain detailed disciplinary procedures, the purpose of many of the provisions is likely to be to secure a fair process. That is not inconsistent with the purpose of the disciplinary process as a whole being to facilitate the exercise of managerial power. A key role of procedural provisions that ensure a fair process (for example provisions that individuals are given adequate notice of allegations against them and a proper opportunity to respond) is to help secure accurate factual findings, and to ensure that those subject to a complaint accept outcomes as fair and appropriate. That is important to good management of employment relationships as well as for securing fairness for individual employees. 36. Third, obligations to act fairly in the disciplinary process may be imposed on employers not only through express contractual provision, but though an implied duty that neither party to an employment contract will act, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of trust confidence between employer and employee (Gregg v North West Anglia Foundation Trust[2019] ICR 1279 paragraph 97 and Al-Mishlab paragraph 17).”
“Dr Catherine Taylor will be available to attend as a witness. Due to the short notice of your request, and in recognition of the potential emotional impact on the other individuals involved, we have not asked the witnesses to attend the hearing in person at this stage. However, please be assured that if, during the course of the hearing, I, as Chair considers that additional information or clarification from any witness is required, the hearing will be adjourned to allow this to take place. As an alternative, you are welcome to submit any specific questions or points you would like the witnesses to address in writing. We can then share these with the relevant individuals and arrange for written responses to be provided. Please let me know if you would like to proceed with written questions or if there is anything further you need ahead of tomorrow’s hearing.”
“In terms of the witnesses to be called, further to my email below, usual practice would be that the transcripts collated during the investigation would be referred to unless there was a specific reason to call individuals in person. I would be grateful if you would confirm the reason why you wish to call the individuals and why it would be proportionate when the investigation transcripts are available. The Panel is then happy to consider the position.”