Mattu v University Hospitals of Coventry and Warwickshire NHS Trust  EWCA Civ 641 CA
human rights | disciplinary hearing | fair and public hearing
The Court of Appeal has held that an NHS trust's decision to dismiss a doctor, which made it more difficult for him to practise in his chosen profession, did not engage his right to a fair and public hearing under the European Convention on Human Rights.
Implications for employers
This case confirms that public-sector employers do not have to start second-guessing whether or not art.6 of the European Convention on Human Rights applies to its disciplinary proceedings.
One important outcome of this is that employees do not have to be offered legal representation at disciplinary hearings, unless this is written into contracts of employment or the employer's disciplinary procedure.
The employer must still follow the usual unfair dismissal rules, which include that the employee should have the right to be accompanied by a colleague or trade union representative at disciplinary hearings.
Dr Mattu was employed as a cardiologist. He had been appointed to the post in 1998, but he was suspended in 2002 on disciplinary grounds. The relevant disciplinary hearing did not begin until 2007. The disciplinary process was finally concluded in April 2008 and the result was that Dr Mattu was given a first warning and required to undertake a "reskilling" programme. This is a common requirement for doctors who wish to return to work after doubt has been cast on their fitness to practise medicine.
Disputes over Dr Mattu's reskilling (in particular, his refusal to sign an action plan) eventually resulted in his dismissal in November 2010. An appeal was started in May 2011 but, before it could be concluded, Dr Mattu brought High Court proceedings claiming, among other things, that the NHS trust had violated his human rights.
The High Court did not believe that Dr Mattu's "right to work", which would have attracted art.6, was threatened by the disciplinary proceedings. The procedure did not directly affect his registration with the General Medical Council (GMC). Unless and until the GMC erased, suspended or rendered conditional Dr Mattu's registration, he remains a fully registered medical practitioner. While there was no doubt that a dismissal would be a blot on Dr Mattu's career, the panel was not determining Dr Mattu's entire reputation. He appealed to the Court of Appeal.
The Court of Appeal pointed out the significance of finding that the trust's contractual disciplinary procedure engaged art.6 of the European Convention on Human Rights. If art.6 is engaged by a public employer's contractual disciplinary procedure (because the employer is a public authority within the meaning of the Human Rights Act 1998), tribunals would have to consider whether or not the dismissal was compliant with art.6, with the procedure needing to include the right to legal representation. Further, the application of art.6 is not confined to doctors and similar professionals. The European Convention on Human Rights, and in particular art.6, is blind to social, professional and economic status. For the low paid such as care workers, the protection of the Convention may be all the more important.
The Court of Appeal went on to say that it is not only public employers that must comply with art.6. On the basis of the principle laid down by the European Court of Human Rights in Wilson, Palmer and others v United Kingdom  IRLR 568 ECHR, the UK Government may be obliged to enact legislation requiring private employers to comply with art.6 when considering whether or not to dismiss their employees.
The Court of Appeal accepted that the right to carry on one's profession is undoubtedly a civil right that would normally attract art.6. In this case, the right in question is a "right to continue to exercise the medical profession".
However, the Court of Appeal stressed that there is no direct link in this case between the internal disciplinary process and any subsequent action taken by the GMC that might result in Dr Mattu being barred from practice. The GMC is entirely independent of the NHS trust and it is not bound by its findings. The Court of Appeal could not see how the trust's lawful exercise of its contractual right to discipline Dr Mattu could be said to be determining a civil right. The gravity of the consequences of a decision to dismiss does not change the nature or character of the decision that is being made.
The Court of Appeal also rejected Dr Mattu's assertion that, even if his legal right to work as a doctor was not in theory affected by his dismissal, in practice his right was affected because the practical consequence of his dismissal is that he cannot find employment with another NHS trust. The Court of Appeal pointed out that Dr Mattu is a consultant who is able to practise as a self-employed doctor, from Harley Street or elsewhere, or in a private hospital. There was no evidence that he has been refused employment by any other NHS trust.
In any event, the Court of Appeal's judgment was that the question of the applicability of art.6 cannot depend on whether or not in fact a doctor or other professional can obtain work in his or her field as a result of dismissal by an employer.
The Court of Appeal was reluctant to require employers to second-guess whether or not a dismissal could, in practice, preclude the employee from working in his or her chosen profession. If that were so, art.6 would not apply to the dismissal of an eminent consultant, who would be snapped up by another NHS trust or who could engage in private practice, but would apply to a junior doctor if there is a surplus of doctors at that level to fill the vacancies available. The Court of Appeal also gave the example of a junior doctor facing the same allegation at a time when there is a shortage of doctors at that level, and who could easily find alternative employment. Does this mean that employers have to investigate that employee's employment prospects to decide whether or not art.6 is engaged? A decision like that would be liable to be challenged in subsequent legal proceedings, which is an "invitation to uncertainty" and lead to costs that would be better deployed in the present case in caring for patients.
The Court of Appeal distinguished the present case from:
Case transcript of Mattu v University Hospitals of Coventry and Warwickshire NHS Trust (on the BAILII website)