DR E E AZIZ v SOUTH TYNESIDE HEALTH CARE TRUST [2002] UKEAT 1175_01_1104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1175_01_1104Case No Appeal No. EAT/1175/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR E E AZIZAPPELLANTSOUTH TYNESIDE HEALTH CARE TRUSTRESPONDENT
Before
Mr Justice LindsayDate 11 April 2002
[1]APPEARANCES For the Appellant MS LAURA COX QC (MR JACQUES ALGAZY) (of Counsel) Instructed by: Messrs Hodge Jones & Allen Solicitors 31-39 Camden Road London NW1 9LR MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a preliminary hearing the appeal of Dr E E Aziz in the matter Aziz -v- The South Tyneside Healthcare Trust and today Dr Aziz has appeared in front of us by way of Ms Cox QC, and Mr Algazy.[2]Dr Aziz was held by the Employment Tribunal at Newcastle Upon Tyne, under the chairmanship of Mr A Fraser, not to have been unfairly dismissed. He had given false and incomplete information in his job application, seeking to be Senior Registrar in Clinical Pharmacology in the employ, which was offered and accepted, of the Respondent Trust.[3]Ms Cox argues that three broad grounds of appeal should go forward to a full hearing, giving them the labels firstly of the "Dishonesty Issue", secondly the "Procedural Unfairness Issue" and thirdly the "Disproportionate Penalty Issue", and it is convenient to use those labels but we take them in a different order.[4]Firstly the third, the "Disproportionate Penalty" issue. That is said in the Skeleton Argument put in by Counsel for Dr Aziz to be as follows:
"20. ………..The Appellant's case here is that dismissal of a medical doctor, coupled with a report to the General Medical Council and the issue of an "alert letter" to all regional directors of public health was a disproportionately severe sanction. The Appellant admits to an error of judgement in his conduct but the combined action of the Respondent, even on the Respondent's interpretation of his conduct, amounts to an effective block on his working in the UK and seriously damages his working prospects abroad. Such a devastating impact on the professional career of a 39 year old medical doctor is entirely disproportionate to the nature of the allegation in question. 21. Additionally, little or no regard appears to have been given to the Appellant's unblemished track record with the Respondent for nearly four years."
[5]So that is the nature of the "Disproportionate Penalty Issue". It is not foreshadowed in the Notice of Appeal; it could only be raised if that was amended. There is nothing to suggest that it was raised in any such way below, and therefore could be properly raised here; and, moreover, it gives rise to a need to enquire into facts which are not referred to by the Employment Tribunal in their Extended Reasons and which, it would seem (we cannot put it higher than that) had not been given in evidence. For example, it gives rise to questions such as whether an "alert letter" was in fact issued as part of the Trust's imposed sanction, and if so, by whom, and distributed to whom, and under what, if any, legislative or other provisions. It gives rise to the question whether the sanctions applied by the Trust did, indeed, amount to an effective block on Dr Aziz's working in the United Kingdom which, of course, in turn, raises the question of whether there was consequentially a period of unemployment on his part in the United Kingdom. It also gives rise to the question of whether the sanction, so applied, seriously damaged his prospect of working abroad, and again, that would have to be a matter of evidence. So, in the circumstances, we think the proper course as to the "Dishonesty Issue" is not to permit it to be raised by way of amendment to the existing Notice of Appeal.[6]As for the "Dishonesty Issue", we will explain a little more fully some of the background facts that need to be understood. They include these: that in paragraph 6 of the Employment Tribunal's Extended Reasons one finds:- "In September 1996 the applicant submitted an application for the post of Senior Registrar in Clinical Pharmacology at the Postgraduate Institute for Medicine and Dentistry (Northern Deanery)." A little later in paragraph 7, the Tribunal said:
"In his application for the post, the applicant was asked to set out, on page 3 the following information: "
PREVIOUS MEDICAL APPOINTMENTS HELD (with exact dates) SINCE QUALIFICATION (in reverse chronological order)" And the form had on it:
"I understand that appointment, if offered, will be subject to information given on this form being correct. I also understand that appointment is subject to satisfactory medical clearance which may include a medical examination."
[7]Dr Aziz said, of his previous appointments, as follows:
"18 months Substantive Registrar Experience in Ireland 1/1/95 - 30/6/95 Medical Registrar Cavan General Hospital 11/12/93 - 31/12/94 Specialist Physician Private Practice Cairo 1/7/92 - 30/6/93 Medical Registrar Sligo General Hospital, Ireland"
That was untrue, and the Trust raised the matter with him. It was first of all raised by a Dr McInerny, in a letter, and then there was a meeting. The Tribunal in their paragraph 11 say:
"Following the meeting, Dr McInerny wrote to the applicant saying: "
It has come to my attention that when you applied for your current post you failed to declare the fact that you had been employed at the General Hospital, Tullamore in Ireland from 1 January 1994 and that you were suspended on 31 January 1994. I enclose a copy of an article from the Irish Medical Times and a copy of the relevant page of your CV. In our view, if this is true, this constitutes gross personal misconduct…." ."[8]Dr Aziz prepared for the disciplinary hearing that was foreshadowed by putting in a statement of case in which he said this:
"On 1 January 1994, I commenced a registrar post contracted for a 12-month period with the General Hospital Tullamore. I was suspended from duty on 31 January 1994 and my contract was terminated on 11 March 1994. My case was heard in the High Court and then in the Supreme Court and on the 29 October 1999 the Supreme Court ruled that the termination of my employment has been unlawful. At the time of applying for the position of Senior Registrar with the Trust, the case had not been heard, as such, the events and duration of my employment at the General Hospital, Tullamore, were subject to the outcome of the pending court case. I felt I had been unfairly treated during this employment and I did not feel it was appropriate to include uncertain information within my curriculum vitae. I also believed it was inappropriate to claim training credit for a position in which I was unable to continue. I therefore provided details of my work as a Specialist Physician in private practice."
[9]However, at the disciplinary hearing his representative from the British Medical Association made this next submission part of his case, namely:
"The applicant had felt that had he referred to this part of his employment…." [That is a reference to the Tullamore part] "…he would not have been successful in obtaining this post."
And it transpires that that was a judgment that the Employment Tribunal later felt was confirmed by a letter from Professor Rawlins, which we do not have. The outcome, therefore, of the disciplinary hearing was that:
"He believed that the applicant had falsified his application form ….." [that is a reference to Mr Jones, who conducted the disciplinary hearing] "……..He believed that the applicant had falsified his application form, with the intention of deceiving the appointments panel, and thus there was a breach of trust. His decision, which was supported by his advisors, was that the applicant be dismissed with immediate effect, and the case be reported to the GMC."
[10]There was then an internal disciplinary appeal heard by Mrs Elsy. She upheld the dismissal and as to that the Tribunal said, in their paragraph 20: "In reaching the decision, Mrs Elsy had in mind that the applicant had stated that he was employed in Cairo between 1 December 1993 and 31 December 1994. This was not true. Whatever the circumstances in Ireland, the Trust had been prevented from obtaining information or references about this period of his career. They were satisfied that there had been a significant [breach of] trust which amounted to gross personal misconduct, and accordingly dismissed his appeal. He was advised to this effect by letter dated 20 November 2000".[11]In fact the period from December 1993 to 31 December 1994 and onwards seems to have been spent, according to the Employment Tribunal's findings as follows: firstly from 1 January 1994 to 31 January 1994, Dr Aziz was at the Tullamore Hospital in Ireland. Then there is a gap which is not specified but after some while he then went to Cairo and had a spell there, then he must have returned westward and had a job in Cavan, and then from June 1995, for a spell, there were various locum appointments that he held in England, and then from March 1996 to October 1996 he was at Addenbrooke's in Cambridge and it was in that spell, in September 1996, that he applied to the Trust with which we are concerned. So Dr Aziz's details did not merely fail to mention the Tullamore job, and its suspension, but failed to mention a good deal else besides.[12]The "Dishonesty Issue", to revert to the description that this particular issue is given, gives rise to the question of whether there was properly considered, in the light of Coyne -v- John Lewis PLC [2001] IRLR 139 , the issue of whether Dr Aziz's conduct was with the intention to deceive, as the Employment Tribunal had held. Coyne , where it applies, requires a two-stage process, and in the passage from the case, usefully cited in the Appellant's Skeleton Argument, that two stage process is described as follows:
"Firstly, one must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest? Secondly, if so, then one must consider whether the person concerned must have realised that what he or she was doing was by those standards dishonest. In many, but not all, cases where actions are obviously dishonest by ordinary standards, there will be no doubt about it."
[13]It will be remembered that it was Dr Aziz's own case, at the disciplinary hearing as found by the Employment Tribunal, that he had felt that had he referred to the Tullamore job and its suspension, he would not have got the job with this Trust, and so it seems inevitable to us that, with a view to obtaining very responsible employment as a medical doctor, which, if the full truth had been declared, he believed he would not have got, he omitted a critical part of that overall truth deliberately. As it seems to us, by the ordinary standards of reasonable and honest people, that was dishonest. But the question is then raised, if Coyne applies, must he have realised it was dishonest by those standards? He is a highly educated professional man. There is no mention of any common practice amongst medical men in the United Kingdom, or in Ireland, or in Egypt, of not giving honest and truthful curriculum vitaes, nor of their being allowed or expected to edit out unfavourable passages, or of that being tolerated.[14]If he did as he did to get a job which he believed otherwise would not have been offered to him, as was his own case, there would, surely, be huge difficulties in his having raised any credible doubt on the subject of whether he had not realised what he was doing was dishonest and there is no hint that he had given any evidence to suggest that he did not believe that what he was doing was dishonest. He certainly had asserted to the contrary before the disciplinary hearing, as we have seen in his written statement, but how the evidence emerged at the disciplinary hearing is not recorded, but it is certainly not recorded that he credibly indicated that he had not believed that what he was doing was dishonest. Given the blatancy which his own case involved, it was the sort of case in which, to use the language of Coyne in the passage we have already cited, "there will be no doubt about it". Coyne itself says it is to be applied "where there may be a difference of view of what is dishonest". In Coyne , the issue was the dishonesty or not of the making of private telephone calls whilst at work. Plainly that was a matter in which questions of degree were to arise; no one, surely, except in the most clear cases of manifest notice by the employer to such effect, would regard the occasional making by an employee of one or two personal calls without charge as dishonest, whereas, if the employee was making scores of calls, one could see that dishonesty might come in play. Coyne was a case, in other words, where there could be a difference of view of what was dishonest. But here, as we see it, there could have been no difference of view as to what was dishonest and, indeed, the employer's view at the disciplinary stage, which is cited from Mr Jones's witness statement was:
"My conclusion was that he had falsified his application form, that the intention in doing so had been to deceive the Appointments Panel and that therefore there was a breach of trust such that immediate dismissal was appropriate"
[15]The Employment Tribunal purported to distinguish Coyne and we see force in Ms Cox's argument that the ground on which it was sought to be distinguished was a poor one, but, truly speaking, they had no need to distinguish it; it did not arise, even on its own terms. On the facts as understood at the disciplinary stages by the employer and for which reasonable grounds then were available, there could have been no difference in view as to the intention to deceive. In the circumstances we do not find any arguable error of law to arise out of the so called "Dishonest Issue" and we dismiss that ground here and now.[16]That leaves the "Procedural Unfairness Issue" which is an amalgam of paragraph 16-19 of Ms Cox's Skeleton Argument, of 22 March of this year, and also paragraph 6(ii) and (iii) of the Notice of Appeal. We do believe that those issues, knocking them together and describing them as the "Procedural Unfairness Issue" do give rise to arguable error of law and that alone we permit to go to a full hearing. As to conventional directions, Skeleton Arguments are to be exchanged not less than fourteen days before the hearing, and sent to the EAT at the same time, and we mark it Category A.