Doctor wins appeal against being dismissed in her absence

A doctor has won her appeal against being dismissed at a disciplinary hearing that she was unable to attend.

The case involved a doctor who had been suspended from clinical practice over performance and safety concerns. The written terms of her suspension stated that she could not work as a doctor for any other NHS trust or organisation without the permission of her employer.

She breached those terms by working for another NHS trust during her suspension. At an investigatory meeting the doctor stated that she had misunderstood the terms of the suspension letter.

A disciplinary hearing was convened, but the doctor was abroad and sought an adjournment. The employer initially agreed, but then changed its mind and proceeded with the hearing in her absence. She was dismissed for misconduct.

The Employment Tribunal later concluded that there was little that she could have said to excuse her conduct, and held that the dismissal was fair.

The Employment Appeal Tribunal has now overturned that decision. It held that the doctor had not admitted to working for another trust dishonestly or knowing that she was in breach of the suspension.

Since an important issue was the doctor’s state of mind, proper consideration should have been given to why the employer thought the doctor’s presence at the hearing would be futile and whether its actions were reasonable.

The tribunal judge had erred in law in his approach to whether the employer had adopted a fair procedure. The case was therefore remitted to a freshly constituted employment tribunal.

Please contact John Carter if you would like more information about the issues raised in this article or any aspect of employment law.