Mattu v University Hospitals Coventry and Warwickshire NHS Trust

This matter was brought on by way of speedy trial and argued before me on 20 and 21 June 2006. There are a number of issues to be resolved, for the most part concerning the terms of what is called the Serious Professional Misconduct Procedure, which derives from the Circular HC(90)9 of the Department of Health, and which formed at all material times an important part of the contractual terms governing the employment of consultants in the Health Service and, in particular, the relationship between the Claimant in these proceedings, Dr Raj Kumar Mattu, and the Defendant, the University Hospitals of Coventry & Warwickshire NHS Trust (“the Trust”).

Dr Mattu was suspended on 21 February 2002 while allegations against him were investigated by a Panel, appointed in accordance with the above Procedure, with a view to making findings of fact, to expressing a view on “fault” in the light of those facts, and making recommendations where appropriate as to any disciplinary action.

The Panel sat under the chairmanship of Mr Andrew Stafford QC between January and May 2005 and submitted its final report (in two parts, as contemplated by the Procedure) on 26 March 2006. Meanwhile, Part 1 had been submitted in draft in December 2005. It would seem to be clear, in this case at least, that the implementation of the Procedure can be time-consuming, cumbersome and expensive. Much will depend on the facts of the individual case and, to a large extent, on the practice and procedure which the Panel decides to adopt. In this case, there was accorded a right to legal representation, and oral evidence was taken and submissions made in a manner closely approximating to that applying in civil litigation. I understand that the Procedure has subsequently been abandoned and replaced, probably with a view to avoiding complexity and delay so far as possible. With effect from June 2005, I was told, there would no longer be the right to an independent inquiry panel or to legal representation. That is, however, of no relevance to these proceedings, since everyone agrees that the Procedure governed relations between the parties, and I must determine the issues arising before me in the light of that fact.

I am grateful to Mr Hillier QC and Mr Hendy QC who appeared, respectively, for the Trust and for Dr Mattu for their detailed and illuminating submissions. I must now turn to the statutory and contractual framework which forms the background against which the outcome must be determined.

As was noted by Lord Steyn in Skidmore v Dartford & Gravesham NHS Trust [2003] ICR 721, 726 at [13]:

“The terms contained in HC (90)9 were imposed upon doctors by Regulation 3 of the National Health Service (Remuneration and Conditions of Service) Regulations 1991 (S/I 1991/481). It is now part of the … the employment contracts of almost all NHS doctors”.

This was the origin of the detailed disciplinary code which the Trust sought to implement in this case. It is appropriate to begin by setting out the relevant terms of the Medical & Dental Staff Disciplinary Procedure:

“1.

INTRODUCTION

1.1

The procedures set out below are designed to ensure that the fullest and fairest consideration is accorded to medical and dental practitioners in the event of incidents or complaints regarding their conduct or competence.

1.2

The procedures will apply to all medical and dental staff substantively employed within the Trust.

1.3

The procedure(s) to be followed following allegations of misconduct will depend on the nature of the allegation. In determining this the following definitions will apply:-

PERSONAL CONDUCT – Performance or behaviour of a practitioner due to factors other than those associated with the exercise of medical or dental skills.

PROFESSIONAL CONDUCT – Performance or behaviour of a practitioner arising from the exercise of medical or dental skills.

PROFESSIONAL COMPETENCE – Adequacy of performance of a practitioner related to the exercise of their medical or dental skills and professional judgment.

Where the nature of the alleged misconduct is disputed the matter shall be referred to a panel comprising the Medical Director, Chairman of the Senior Medical Staff Committee and a consultant from outside the Trust acceptable to both parties, who shall determine the procedure to be followed.

1.4

Additionally, allegations or complaints may be made regarding a practitioner’s repeated failure to honour contractual commitments.

1.5

To determine the appropriate procedure to invoke in any particular case, a Preliminary Assessment will be made by the Medical Director. Preliminary Assessments will be made as indicated in paragraph 2 below.

1.6

Where the Preliminary Assessment indicates that disciplinary action is necessary, one of the following procedures will be utilised:

a)

In cases of Personal Misconduct – the Trust’s general Disciplinary Procedure …;

b)

In cases of Professional Misconduct or Professional Incompetence, where action short of dismissal is deemed to be the likely outcome, and in cases of failure to honour contractual commitments – The Review Procedure … ;

c)

In cases of Professional Misconduct or Professional Incompetence, where dismissal may well be the outcome – the Serious Professional Misconduct/Incompetence Procedure, including Appeal against Termination of Employment …

1.7

Where, in the Medical Director’s opinion, a practitioner’s continued attendance at the workplace is or would be prejudicial to an investigation or good working, or is not in the interests of patients, the public or other staff, the practitioner may be suspended from duty on full pay pending the outcome of the preliminary enquiries or the full investigation. In each case, consideration and implementation of suspension shall at all times be in accordance with the Health Service Guidelines set out in HSG (94) 49.

1.8

Authority to suspend or to extend a suspension period is vested in the Medical Director.

1.9

The time limits set out in these procedures shall apply in all cases, unless there is mutual agreement to vary them.

1.10

Nothing contained in this procedure shall remove the right of practitioners appointed under Whitley Council Terms and Conditions of Service from appealing to the Secretary of State under Paragraph 190 of the Terms and Conditions of Service for Hospital Medical and Dental Staff, where he/she considers that his/her appointment is being unfairly terminated.

2.

PRELIMINARY ASSESSMENT

2.1

A preliminary assessment will be conducted by the Medical Director and Chairman of the Senior Medical Staff Committee to ascertain whether or not a prima facie case exists which warrants disciplinary action being taken. The allegations will normally be discussed with the practitioner concerned.

2.2

This Assessment may determine that:

a)

there is no substance to the allegation or complaint and that no further action is necessary,

b)

the practitioner may be experiencing health problems …,

c)

there is substance to the allegation or complaint that either:

(i)

the Trust’s general Disciplinary Procedure for Personal Misconduct shall be invoked …;

(ii)

the Review Procedure shall be invoked …;

(iii)

the matter warrants referral to the Chief Executive for the Serious Professional Misconduct/Incompetence Procedure to be invoked …;

and in all instances the practitioner will be advised in writing accordingly.

…

4.

THE REVIEW PROCEDURE

…

4.7

When the Review Panel completes its review, it shall provide a written report to the Chief Executive, signed by the three panel members, in two parts:-

a)

Part One shall detail the evidence submitted or received by the Panel, a copy of which will be provided to the practitioner and all parties who gave evidence. 14 days will be allowed for comments on factual accuracy.

b)

Part Two shall advise if and to what extent the practitioner is at fault, and make recommendations. Part Two shall be available only to the Chief Executive for his/her further action. The Review Panel itself shall not have any disciplinary powers.

4.8

After considering any comments received as to factual accuracy, the Chief Executive shall decide what action is appropriate.

4.9

If disciplinary action is decided upon, the Chief Executive will arrange a disciplinary hearing involving the Medical Director and will convey to the practitioner the substance of the panel’s views and recommendations in good time before the hearing. Depending upon the circumstances and gravity of the case, he/she will issue either:-

a)

a first written warning, or

b)

a final written warning

…

5.

SERIOUS PROFESSIONAL MISCONDUCT/ INCOMPETENCE PROCEDURE

5.1

Unless the Chief Executive considers that there is no case to answer, the practitioner should be advised immediately in writing and be given one week in which to seek advice and make representations before any decision to proceed is made. If the Chief Executive decides that there is a case to answer but there is no substantial dispute as to the facts, any further action should be in accordance with paragraphs 5.11 to 5.14 below. If there is a dispute as to the facts, the Chief Executive should set up an Inquiry panel comprising;

a)

A legally qualified Chairperson, nominated by the Chief Executive and approved by the Chairman of the Senior Hospital Medical Staff Committee.

b)

A practitioner from outside the Trust, nominated by the Trust and approved by the Chairman of the Senior Medical Staff Committee.

c)

A third member who may vary, depending on whether the case involved professional misconduct or professional incompetence. In cases of professional misconduct the third member should be a lay person, not a member of the Trust Board, who is nominated by the Trust and approved by the Chairman of the Senior Medical Staff Committee.

In cases of professional incompetence (or where charges relate to conduct between one practitioner and his/her professional colleagues) a third member who is also a practitioner form outside the Trust, nominated by the Chairman of the Senior Medical Staff Committee and approved by the Trust. In the case of senior doctors, consultation with the national Joint Consultants Committee is recommended before professional members are chosen.

5.2

The practitioner member (or one of the practitioner members where two such members are appointed) should be of the same specialty and of the same or higher grade as that of the practitioner against whom the allegation or complaint has been made.

5.3

The panel shall be provided with precise terms of reference, drawn up by the Chief Executive and agreed with the Inquiry Panel Chairperson.

5.4

The practitioner against whom the allegations or complaint has been made shall be informed, in writing, of the setting up of the Inquiry Panel, and its terms of reference, and be afforded not less than 21 days notice to prepare his/her case. He/she should be furnished, as soon as is practicable, with copies of correspondence or written statements made, and a list of probable witnesses.

5.5

The Inquiry Panel Chairperson will determine the procedure and rules regarding the admission of evidence, and may if he/she so wishes, hold a preliminary hearing with the parties, or their representatives for this purpose.

5.6

The Inquiry Panel Chairperson will conduct the investigations during the hearing.

5.7

The Trust and the practitioner have the right to be represented at the Inquiry Panel hearing by a lawyer. The practitioner also has the right to appear personally at the hearing, to hear all the evidence presented, to cross-question witnesses and to present his/her own witnesses who in turn may be cross-questioned.

5.8

The Trust will provide secretarial support to the Inquiry Panel.

5.9

The Inquiry Panel shall, on completion of its deliberations, prepare a report in two parts:

a)

Part One shall set out the Inquiry Panel’s findings and all the relevant facts of the case, but contain no recommendations as to action. This part will be copied to the practitioner against whom the allegations or complaint has been made, and all those who gave evidence who will be given four weeks in which to submit proposals for correction of facts or setting out in greater detail the facts on any particular matter which has arisen. The Inquiry Panel shall decide whether to accept any proposed amendments and whether or not to make any further inquiries.

b)

Part Two shall contain the Inquiry Panel’s view as to whether the practitioner is at fault and contain recommendations as to disciplinary action. Part Two shall be available only to the Chief Executive for his/her further action. The inquiry panel itself will not be given any disciplinary powers.

5.10

On receipt of Part two of the report, the Chief Executive shall decide what action is appropriate. If the panel finds the practitioner to be at fault the substance of the panel’s views and recommendations shall be made available to the practitioner, in good time before any hearing, giving him the opportunity to put in a plea of mitigation.

5.11

If disciplinary action is decided upon, the Chief Executive will arrange a disciplinary hearing at which, depending upon the circumstances and the Inquiry Panel’s recommendations, he/she will:

a)

Issue a First Written Warning, or

b)

Issue a Final Written Warning, or

c)

Dismiss.

5.12

In issuing a warning, the Chief Executive will clearly state:-

(i)

the reasons for the warning

(ii)

the improvement expected and, if appropriate, the period of time given for improvement;

(iii)

how long the warning will remain in force;

(iv)

that continued unsatisfactory performance or conduct will lead to a Final Written Warning, or if a Final Written Warning has been issued, to possible dismissal.

(v)

the right of appeal and timescale for doing so.

5.13

Warnings will be confirmed in writing to practitioners within seven days of a disciplinary hearing and will remain in force, as follows:-

First Written Warning – Six Months

Final Written Warning – Twelve Months

5.14

In the event of dismissal, the employee will be notified in writing, as to:-

(i)

the reasons for his/her dismissal

(ii)

the period of contractual notice payable where applicable and the effective date of determination of employment; and

(iii)

his/her right of appeal and timescale for doing so.

5.15

the Serious Professional Misconduct/Incompetence Procedure shall normally be concluded within a time period not exceeding 20 weeks.

…”.

The remaining parts of the Procedure are concerned with such matters as fees and travelling expenses for members of the Panel, the appeal procedure and incapacity. I need not set these out. The above extracts will sufficiently identify the context for the arguments developed before me. Most attention was addressed to paragraphs 5.10 and 5.11. I shall return to them in due course but, for the moment, it should be noted that there is a variation in terminology, as between paragraph 5.9 and 5.10, which gives rise to a potential tension when attempting to assess an inquiry panel’s role in the context of “fault”. Whereas paragraph 5.9(b) refers to the Panel expressing a “view” as to whether the practitioner is at fault, paragraph 5.10 seems to contemplate that the Panel will make a “finding”. To add to the confusion, it will be observed that, so far as the Review Procedure is concerned, paragraph 4.7(b) provides for a Review Panel to “advise” if the practitioner is at fault.

I say nothing about the bulk of the terms of the contract governing Dr Mattu’s employment. I need only refer to paragraph 9:

“DISCIPLINE

In matters of misconduct you will be subject to the Trust’s procedures and policies relating to discipline and dismissal. The Trust will also take account of guidance laid down in Health Circular HC 90(9) as it relates to disciplinary procedures for Hospital and Community Medical and Dental Staff where such guidance is appropriate to the employment of consultants and staff within the Walsgrave Hospitals NHS Trust”.

The stage has now been reached at which the Defendant, through Mr Roberts its present Chief Executive, proposes, in the light of the contents of the two parts of the Panel’s Report, to take disciplinary action against Dr Mattu in respect of a number of findings of fault. It is submitted on his behalf that certain aspects of the proposed disciplinary action, or steps which it is anticipated that the Chief Executive will take, would be inconsistent with the terms of the contractual code and should therefore be restrained by an injunction. The principal issue before me is whether there is any evidence to suggest that the Trust (through the Chief Executive) proposes to take any step which is unlawful and, if so, the extent to which any injunctive relief is appropriate. The test must be whether what is contemplated would be in breach of contract, and not whether the imposition of any particular sanction would be unfair or unreasonable.

The Claimant’s case is based largely upon the content of a letter dated 7 April 2006 from the Chief Executive, and an attached appendix, which (it is submitted) give rise to a reasonable apprehension that the proposed course of action will be in breach of contract. I must now turn to that letter.

The letter is headed “Private and Confidential” and was signed by Mr Roberts. It was in these terms:

“Dear Dr Mattu

In accordance with the agreed procedure I am enclosing a copy of Part 2 of the Panel’s report.

You will see that the panel has made a number of findings of fault arising out of its findings of fact and it recommends that disciplinary action be taken.

I have given careful consideration to the report and at this stage, in the light of the serious findings made against you, I do not feel able to accept that the maximum sanction should necessarily be a first written warning as recommended by the Panel.

Accordingly, I have decided to commence disciplinary proceedings against you. The basis for those proceedings and the matters which you will be required to answer are set out in the attached appendix. One of the possible outcomes of those proceedings could be your dismissal.

I shall write to you further to discuss the details of the procedure which will be followed and to arrange a suitable hearing date; I do not anticipate that this will take place before Easter. I have considered whether your exclusion from work should continue pending the outcome of the Disciplinary Hearing. Clearly, the situation between now and your Disciplinary Hearing needs to be handled with sensitivity. I suggest it would be helpful for you to meet with Mr Martin Lee, Medical Director to discuss your individual professional needs in this interim period. It is important that you receive whatever help is necessary to secure your successful reintegration into medical practice, without prejudice to the final outcome of the hearing”.

The Part 2 Report was indeed enclosed with the letter, as was an appendix relating to the proposed disciplinary hearing.

I believe it is unnecessary to set out the attached appendix in full, although it is undoubtedly an important primary document in the current dispute. As it runs to ten pages I will attempt to summarise its contents. Its general purpose was to notify Dr Mattu that he would be required to deal with “certain identified findings” made by the Panel. Mr Hendy does not accept that some of the matters thereafter set out are properly to be characterised as “findings”. He argues that they represent a gloss on the part of Mr Roberts or his advisers. There is also a live issue, so far as “fault” is concerned, as to whether the conclusions (to use a neutral word) contained in Part 2 of the Panel’s Report are binding on the parties, or whether in this respect the Panel was only entitled to express “views” and, in so far as there has been fault, as to the calibration of seriousness – thus leaving the Chief Executive at or after the proposed disciplinary hearing to come to his own independent assessment of those matters. Mr Hendy’s submission was encapsulated in the somewhat serpentine proposition “… that the Chief Executive may not make findings of fault in relation to findings of fact not forming the basis of a finding of fault where the Inquiry Panel has made findings of fault in relation to other findings of fact”. Yet all becomes clear in the next sentence: “The power to find fault is reserved to the Inquiry Panel”.

It is the Defendant’s case that the findings of fact in Part 1 of the Panel’s Report are, as they stand and without any explanation or statement of mitigation, sufficiently serious to justify leaving open all disciplinary options (including that of dismissal), whereas the Panel’s conclusion was that its findings did not disclose conduct on Dr Mattu’s part so serious as to justify any disciplinary action beyond a “first written warning”.

A related issue, to which considerable attention was given in the course of submissions, is whether or not it is fair to conclude from the terms of Part 1 of the Report that the Panel found, in a number of respects, that Dr Mattu had actually lied in the course of his evidence. The word “lies” was not used in terms, but it is submitted on the Defendant’s behalf that, in at least some instances where his account of events was rejected, it is an inevitable inference that the Panel thought he was lying and, in effect, made such a finding. Dr Mattu’s case is that this would be to read too much into the Panel’s findings. Even though in the Trust’s closing submissions the members of the Panel were invited to conclude, in certain respects, that Dr Mattu had been lying, they drew back in the body of the Report from actually saying so. Moreover, and in any event, Mr Hendy submits that the “findings” which are contemplated by the Procedure as being appropriate for Part 1 of a Panel Report should be confined to the allegations which formed part of the terms of reference (or “charges”, being the term preferred by May LJ in the case of Barros D’Sa v University Hospitals of Coventry and Warwickshire NHS Trust [2001] IRLR 691, to which I shall have to return in due course).

It is Dr Mattu’s submission that an allegation that he lied during the course of the hearings in 2005, some years after the events forming the basis of the original “charges”, would have to be the subject of separate “charges” which could only themselves be addressed by the appropriate disciplinary procedure – not merely at a final Disciplinary Hearing concerned with events in 2001-2002. This is hotly disputed by Mr Hillier, but the Trust wishes to address at least the possibility of dismissal at the proposed Disciplinary Hearing, even if it is not open to the Chief Executive to proceed on the basis that there has been a finding that Dr Mattu “lied” which is binding on the parties. In other words, submits Mr Hillier, there is enough contained in the findings of fact on the original “charges” to justify keeping open the possibility of dismissal.

That is, inevitably, only a brief summary of the parties’ respective positions, and I am naturally conscious of the risk of over-simplification. Accordingly, I should next return in more detail to the contentions to be found in Mr Roberts’ appendix of 7 April 2006. For this purpose I shall need to refer to the nature of the original “charges”.

In Part 2 of its Report (at para. 6) the Panel noted that:

“The sting of the allegations brought against Dr Mattu is that he abused his power and manipulated Dr Lencioni and Dr Gieowarsingh [two of his research fellows]. We reiterate that, for the purposes of this matter, the parties have included ‘procuring’ within the meaning of the word ‘pressure’ when it appears in the allegations. We have taken the word ‘campaign’ to mean ‘to engage in a process in order to achieve a certain goal’”.

Similarly, in Part 1 (at para. 8) the Panel described the essence of the allegations as a “complaint of bullying”.

The panel went on to “find” that Dr Mattu was “at fault” in a number of respects. In particular, that he put pressure on the two research fellows to write letters in support of an alleged campaign on his part against the Trust’s management, and to edit or amend the content of those letters at his request. It was also “found” that he was “at fault” (on or about 10 January 2002) in refusing to help Dr Gieowarsingh to recover “back pay” because he had declined to assist Dr Mattu in writing letters against the Trust’s management. Moreover, it was found that he had then back-dated a letter, purportedly expressing support for Dr Gieowarsingh’s claim, to 10 January 2002 – the purpose being to discredit Dr Gieowarsingh’s allegation that Dr Mattu had at that time refused to help.

Dr Mattu was found to have put pressure on Dr Lencioni to produce an affidavit in support of Dr Mattu for a grievance hearing on 21 September 2001. The Panel concluded also that he was at fault in asking him to stop playing tennis with a particular colleague and, in that context, alluding to “his capacity to withdraw his goodwill from Dr Lencioni” (i.e. if he continued to play).

After listing a number of factors to which they should have regard in “calibrating the seriousness” of their “findings of fault”, the members of the Panel came to the overall conclusion that Dr Mattu’s “fault” had been relatively serious. Despite that, the recommendation for disciplinary action was confined to a first written warning.

This was the context of Mr Roberts’ appendix of 7 April 2006, which went into rather more of the underlying detail in describing what he took the Panel’s “findings” to have been. Its contents were divided broadly into three headings:

“1.

The Barker incident

2.

The Agrawal incident and

3.

Dr Lencioni’s claim for back pay”.

Under the first heading, Mr Roberts purported to summarise the “findings”. Dr Mattu was said to have used his influence over the two research fellows to procure them to write letters which were critical of Dr Barker and which were in certain respects misleading, in order to serve purposes of his own, and he had been guilty of “fuelling a fire against the Trust”. In this context, I note that Mr Roberts included among his summary of the findings, on no less than four occasions, the formula “You lied to the Panel in your evidence about this matter”.

Under the second heading, Dr Mattu was said to have wrongly involved the two research fellows in a dispute he was having in 2001 with Dr Agrawal. He is said to have done this by procuring various letters to himself and to Dr McCartney (the then Medical Director of the Trust) and to Ms McDonald (described in the Report as “a Deputy Personnel Manager”). Again, it was suggested in the appendix that these letters had in various respects given a misleading impression. Although in this case it is not directly suggested by Mr Roberts that the Panel found that Dr Mattu had “lied”, it is nevertheless made clear that in several instances, in his view, the Panel rejected Dr Mattu’s evidence as “untrue”.

Reference was also made to the preparation of an affidavit by Dr Lencioni, and accompanying documents, of which Dr Mattu had misleadingly influenced the content. Again it is said that in this respect the Panel rejected Dr Mattu’s evidence as “untrue”.

There was another incident when it is said that Dr Mattu arranged for a Mr Needham (his research assistant) to draft a “fabricated” letter dated 24 September 2001. It is again stated that in his evidence Dr Mattu denied any involvement with the letter and that the Panel had rejected that evidence as “untrue”. Moreover, Dr Mattu is alleged to have called Mr Needham to give evidence to the Panel which he (Dr Mattu) knew to be untrue (a charge obviously relating to 2005).

As to Dr Gieowarsingh’s claim for back-pay, under the third of the headings, Mr Roberts mentioned the back-dated letter of 10 January 2002 which was actually supposed to have been written shortly before 5 February. It is claimed that this was because Dr Mattu had heard that Dr Gieowarsingh had complained to other consultants about his (Dr Mattu’s) conduct, in failing to support his claim for back-pay, and wished to give a misleading impression to his own advantage. Again, Mr Roberts referred to the evidence given by Dr Mattu to the Panel and his denial of back-dating. His evidence was variously described as “untrue” and “singularly evasive and, indeed, misleading”.

The overall conclusion at the end of the appendix was expressed by Mr Roberts in these terms:

“The above findings could lead to the conclusion that you were guilty of serious misconduct warranting dismissal”.

Mr Hillier submits that this is an eminently fair document for the Chief Executive to send to Dr Mattu, not least because the facts and issues were very complicated; it was important for him to know the areas on which he had to focus at the disciplinary hearing. It was only right that he should have an opportunity of knowing the first impression which the Panel’s findings had made upon the Chief Executive. Indeed, in the Barros D’Sa case, to which I have already referred, at [20], May LJ had observed that there was no reason why the Trust should not serve “a management case in respect of sanction and mitigation”, but he did emphasise that “they must be careful to consider what it contains”. These are sensitive issues, and it is no doubt only too easy to give the impression of a mind made up. I shall need to return to this subject a little later but, in the meantime, it is right that I should refer to some other documents in the same vein subsequently served on the Trust’s behalf.

On 12 April 2006, there was another letter to Dr Mattu, this time from Alice Casey, who was the Director of Human Resources:

“Dear Dr Mattu

I refer to the Chief Executive’s letter to you dated 7 April 2006 informing you of his decision to commence disciplinary proceedings. I write to inform you therefore, that a disciplinary hearing will be convened in accordance with paragraphs 5.10 and 5.11 of the Medical & Dental Staff Disciplinary Procedure Policy No. 3A. The procedure set out below will be followed.

1.

The purpose of the hearing will be to give you the opportunity to deal with the findings of fact made by the Inquiry Panel chaired by Mr Andrew Stafford QC in its Part 1 Report dated 26 March 2006 and set out in the Appendix to the letter to you dated 7 April 2006 and the findings of fault and recommendations made in its Part 2 Report before the Chief Executive makes his decision as to what disciplinary action, if any, is to be taken. In particular you may:-

1.1

make any representations you wish by way of mitigation in relation to those findings;

1.2

make any representations in relation to the Trust’s Statement of Case (see below);

1.3

put forward any further matters by way of mitigation.

2.

The hearing will take place on a date to be mutually agreed. Two days will be allowed for the hearing. The hearing will be recorded and a transcript will be provided to you.

3.

There will be no right to legal representation at the hearing. However, you will have the right to be accompanied by a colleague, friend, BMA or Defence Union representative.

4.

The Trust will serve its Statement of Case on you by 28 April 2006 together with a bundle of relevant documents.

5.

You will serve your Statement of Case on the Trust by the 19 May 2006.

6.

The Chief Executive will consider the respective statements of case prior to the hearing.

7.

At the hearing, neither party will be entitled to call or rely on new evidence in relation to the matters considered in the Report(s) but you will be entitled to rely on witness evidence as to your character.

8.

The Trust will be limited to its Statement of Case. I will be present to provide advice to the Chief Executive in your presence in relation to any matters that arise.

9.

You or your representative will present your case.

10.

The Chief Executive may question you.

11.

At the conclusion of the hearing the Chief Executive will retire to consider his decision and will communicate his decision to you in writing as soon as is practicable thereafter.

A copy of this letter is being sent to your solicitors.

If you wish to make representations on the process or timetable set out above I will give the same due consideration”.

Then, although a little later than promised, came the Trust’s “Statement of Case to be answered by Dr Raj Mattu”. It was dated May 2006 and ran to eight pages. It was prepared by the Trust’s legal advisers and identified its purpose as being “to set out the matters which it is suggested the Chief Executive may and may not take into account in reaching his decision as to what, if any, disciplinary action is to be taken arising out of the Panel’s findings”. It was explained that Dr Mattu was to have the opportunity of making representations by way of mitigation in relation to “the matters set out in the Report”.

Reference was made to the judgment of May LJ in the Barros D’Sa case at [28], where he set out the important principle:

“It is, in my judgment, an intrinsic part of the structure (and indeed only fair) that the matters relevant to the sanction, subject to what may properly be called mitigation, should, in so far as they are adverse to the member of staff concerned be limited to those which the Panel has found. Otherwise the member of staff would be being sentenced for matters which had not been established against him by the proper contractual procedure”.

This is clearly consistent with a similar proposition expressed earlier at [21], which was citing the judgment at first instance of Blofeld J:

“The proposal that the disciplinary panel can ignore their own disciplinary procedure and deal with the claimant without having alleged any further misconduct by him but yet sentencing him, as it effectively is, for other misconduct is wholly misconceived”.

It is to be noted that at [20] May LJ had highlighted the fact that, in that case, the Trust appeared to be relying on matters, under the heading “mitigation”, which were not going to mitigation at all – but rather to aggravation. Hence his reference at [28] to “what may properly be called mitigation” (emphasis added).

The Trust’s May “Statement of Case” thus readily acknowledged that the Chief Executive was precluded from taking into account any matters which did not form part of the Panel’s “findings of fact”. (On that principle, at least, the parties are agreed.) It went on, at paragraph 12, in the following terms:

“Part 1 contains numerous findings adverse to Dr Mattu, some of which relate directly to the allegations which were made against him and some which are collateral to those allegations. It is suggested that, in deciding on the seriousness of Dr Mattu’s conduct and the appropriate sanction, in terms of factual matters, the Chief Executive should confine himself to those findings of fact adverse to Dr Mattu which are set out in the Appendix to the letter [of 7 April 2006]”.

The notion of “collateral” findings (among which the Trust would include the Panel’s implicit conclusions that Dr Mattu “lied” in certain respects) gives rise to some difficulty – not only of definition, but also of principle. I understand, for example, that Mr Hendy’s case is that the guidance given by the Court of Appeal in Barros D’Sa would not permit the Chief Executive to take into account collateral matters, but only the Panel’s findings directly on the original charges. Certainly, he submitted, it would not be right to take into account implicit findings (or, for that matter, even express ones) to the effect that Dr Mattu had lied to the Panel.

The further proposition was advanced by the Trust, at paragraph 14, that:

“… the Chief Executive should not decide to dismiss Dr Mattu unless he is satisfied that the matters found proved against Dr Mattu constitute serious professional misconduct (what is sometimes called gross misconduct) and that dismissal is the appropriate course of action”.

This has provided another bone of contention. The reference to “gross misconduct” is perhaps confusing and certainly superfluous. It can probably be ignored. It comes from a different context.

More importantly, however, Mr Hendy submits that the Chief Executive has been led into error in contending that the issue of “serious professional misconduct” is for him rather than for the Panel members. He submits that it was exclusively for them to make findings of fault, as indeed they did, and to “calibrate” the level of gravity. Thus, in so far as the Panel held that Dr Mattu’s fault was “relatively serious”, but that his misconduct was not at such a level of seriousness to warrant dismissal, it was not for the Chief Executive to go behind that or to review the Panel’s conclusion. It is in this context that I earlier highlighted the apparent discrepancy between paragraph 5.9(b) of the Procedure and paragraph 5.10 which refer, variously, to the Panel’s expressing a “view” as to whether the practitioner was at fault and to the hypothesis that “… the Panel finds the practitioner to be at fault”.

Next, the “Statement of Case” made reference at paragraph 15 to the decision of Neary v Dean of Westminster [1999] IRLR 288 for the proposition that:

“… the conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment”.

I need to remember, of course, that the language used in the Procedure in this case comes from a specific contractual framework, which had no relevance in the Neary case. Moreover, in the later Barros D’Sa case (where the Court of Appeal was considering the very same Procedure as in this case) Dyson LJ observed at [35]:

“The mere fact that there has been a breakdown of trust and confidence cannot be a relevant circumstance in the context of the document. If it were, it would have the startling effect that a case of serious misconduct which, taken by itself, was thought not to justify any disciplinary action whatsoever, could lead to dismissal, even if responsibility for the breakdown were not that of the practitioner at all; and yet, so far as the outside world was concerned, a practitioner dismissed in such circumstances would have been dismissed for misconduct. … In my view, the short answer to the argument advanced on behalf of the Trust is that the procedure document is intended to authorise disciplinary action for professional misconduct or incompetence, and not for a breakdown of trust between employer and employee”.

I should also cite the controversial paragraph 17 from the “Statement of Case”:

“Whether the conduct amounts to serious professional misconduct is a matter for the individual employer to decide having regard to all the relevant facts which have been found proved, any mitigating circumstances and, in this case, the findings and recommendations of the Panel in Part 2 of the Report. The Chief Executive is not bound by the Panel’s view as to whether or not Dr Mattu was at fault nor by its recommendation. Clearly he must give considerable weight to those matters but always remembering that as Chief Executive he represents the body which has to decide whether to continue to employ the employee and that reasonable people can differ in their judgment as to the seriousness of particular types of misconduct”.

While it is now acknowledged by Mr Hendy as a general proposition that the Chief Executive cannot be bound by the recommendation of the Panel as to disciplinary action (that being the nature of a recommendation), he does not accept that it is for the Chief Executive to come to his own subjective conclusion on either “fault” or “seriousness of fault” (i.e. “calibration”). It is Dr Mattu’s case that the Chief Executive is effectively bound by the Panel’s conclusions on these matters. It follows, likewise, that Mr Hendy does not accept the Chief Executive’s suggestion of a list of four relevant factors for him to take into account when “measuring the seriousness of Dr Mattu’s fault”, since he argues that this task is not for the Chief Executive at all.

The “Statement of Case” then continues by addressing matters under two sub-headings, namely “The Findings of Fact” and “The Seriousness of the Findings of Fact”. This time the findings of fact were summarised as follows:

“(1)

As Consultant in charge of the Cardiac Research Department, Dr Mattu occupied a position of trust in relation to the research fellows and in particular, Dr Gieowarsingh (‘SG’) and Dr Lencioni (‘ML’).

(2)

He abused that trust by unnecessarily involving SG and ML in the disputes he was having with management (both inside and outside the hospital) and procuring them to do so in a way that they would not have done without De Mattu’s encouragement.

(3)

That entailed procuring over a period of time (April to September 2001):

(a)

SG and ML to write letters about the disputes in strong and emotive terms which they would not have chosen; (Schedule, paragraphs 1 to 14)

(b)

ML to provide an affidavit in support of Dr Mattu’s grievance which was in terms suggested by Dr Mattu; (Schedule, paragraph 15)

(c)

ML to sign a fabricated letter to support part of Dr Mattu’s case against management. (Schedule, paragraph 16)

(4)

When SG made clear he did not want to be further involved in these matters, Dr Mattu took the following action:

(a)

He told SG on 10^th January 2002 that, as a result of SG’s withdrawal of support for Dr Mattu, he (Dr Mattu) would no longer support SG’s claim for back-pay which he previously had supported;

(b)

Having heard that SG was going to complain about Dr Mattu’s behaviour, Dr Mattu created a false and misleading letter, the purpose of which was to undermine SG’s complaint by purporting to show that on the date of the conversation, Dr Mattu had been supportive of SG.

(c)

He persisted in denying that he had behaved as above but his evidence was rejected by the Panel.

See Schedule, paragraph 17.

(5)

As set out in the Schedule, Dr Mattu repeatedly lied to the Panel in his evidence about the about the above matters.”

There are then set out under the heading “The Seriousness of the Findings of Fact” a number of specific matters which the Chief Executive would propose to take into account in making his own judgment on the “calibration” issue. I need not set them out in full, but they include such matters as the Panel’s conclusion that “Dr Mattu stood in a position of responsibility with regard to the welfare of his research fellows who were in positions of dependence and vulnerability”; that a doctor has a duty laid down by the GMC in Duties of a Doctor to be “honest and trustworthy” and to avoid abusing his position as a doctor; the obligation recorded in the GMC’s Good Practice in Research not to use real or implied coercion on participants who are in a dependent relationship (e.g. a junior colleague); the need to avoid conflicts of interest; the need for proper supervision of students and junior colleagues and to provide clear information about the roles and responsibilities of supervisors, teachers and mentors; the extent to which Dr Mattu had been in breach of obligations of trust; and the extent to which it would remain necessary to vest trust and confidence in him vis à vis management, colleagues and subordinates.

The document expressly stated that it was ultimately for the Chief Executive “to decide whether that trust has been irretrievably broken”. He would need to make his own assessment in relation to the conduct over the “affidavit and accompanying falsified letter”.

The Document then reiterated that the Chief Executive would, unlike the Panel, take account of the fact that Dr Mattu had “given untrue evidence on numerous occasions”. This is relied upon as a factor which “of itself compounds the seriousness of it in terms of the sanction that may be appropriate”. For this proposition reliance is placed on British Leyland v Swift [1981] IRLR 91.

The Panel recorded (at paragraph 16 of Part 2 of the Report) that they had been invited by the Trust not to exercise the power of making a recommendation as to sanction. The members expressly declined the invitation and added:

“We think that it is highly desirable that the Chief Executive should know what sanction we recommend. If there are relevant matters unknown to us, then the Chief Executive can clearly have regard to those additional matters when considering our recommendations”.

Thus it is apparent that, so far as sanctions were concerned, the Panel accepted that the Chief Executive might very well take into account additional matters extraneous to the Report. In the “Statement of Case”, the Trust’s legal advisers went on to identify some such factors to which he might give weight, such as his own assessment of the impact of dismissal on the career of an NHS consultant, and whether or not it was appropriate to apply in that context “different standards of trustworthiness and conduct from consultants as distinct from other staff”. He might also wish to attach significance to whether or not there was on Dr Mattu’s part “a willingness to mend his ways”, since this could be material on the appropriateness or effectiveness of administering a warning only.

It was against this background that Dr Mattu’s claim for injunctive relief was formulated, the proceedings having been launched on 24 April 2006. When the hearing began, Mr Hendy was seeking an injunction defined as follows, namely that the Trust be prevented from:

“a)

proceeding any further with the proposed disciplinary action as set out in the letter dated 7 April 2006 from David Roberts, the Chief Executive of the Defendant, to the Claimant;

b)

convening a disciplinary meeting to consider any of the allegations set out in the Appendix to the letter dated 7 April 2006 from David Roberts to the Claimant, other than a meeting convened in accordance with paragraph 5.11 of the Defendant’s Policy Statement No. 3A, Medical & Dental Staff Disciplinary Procedure, namely to consider any plea in mitigation from the Claimant and any other circumstances the Chief Executive or any other person may wish to raise and/or consider in mitigation (but not in aggravation) of disciplinary sanction recommended by the Panel of Inquiry chaired by Mr Andrew Stafford QC;

c)

imposing on the Claimant in relation to the allegations made against the Claimant following and arising out of his suspension on 21 February 2002, any disciplinary sanction more severe than that recommended by the Inquiry Panel chaired by Mr Andrew Stafford QC in Part 2 of its report, namely a First Written Warning”.

I must not lose sight of the fact, of course, that what are claimed are final injunctions, not merely “interim” relief to maintain the status quo.

In the course of his submissions in reply, on 21 June, Mr Hendy withdrew the third element of the injunction he was seeking, as set out in (c) above. He told me that he had done so following consideration over night, and had come to the conclusion that he had based the claim for the more extensive injunction on a misinterpretation of certain passages in the judgments of May and Dyson LJJ in the Barros D’Sa case and, in particular, at [24], [28], [33], [34] and [38]. I initially thought this meant that he was no longer contending for the proposition that the Panel’s recommendations on sanctions precluded the Chief Executive from imposing a more onerous sanction, including dismissal, if he thought it right. One consequence of this withdrawal seemed to be that Mr Hillier no longer needed to maintain the objection that the terms of the injunction as sought would, inevitably, have the effect of forcing the Trust to go on employing Dr Mattu at a time when trust and confidence in him had broken down. Or at least so he thought.

Things are not always, however, what they seem. When this judgment was in draft I received another round of written submissions, commencing with a note from Mr Hendy clarifying his concession, dated 23 June, and concluding with a further clarification of 30 June. From these it is clear that I (and I believe also Mr Hillier) had over-interpreted the scope of the concession. It now appears that Mr Hendy accepts, in general terms, that there may be circumstances in which a chief executive could go as far as dismissal, contrary to a Panel’s recommendation – but he says not in this case. That is because the actual findings of this Panel would not permit him to do so. He could only reach the decision that dismissal was appropriate if he was perverse and/or took into account inappropriate considerations. In other words, if he confined himself to addressing legitimate factors (i.e. the findings and recommendations of the Panel) he would be bound to exclude dismissal as an option. It may seem counter-intuitive, in circumstances where the Panel has held that the practitioner’s fault was “relatively serious”, to hold that the Chief Executive is nonetheless confined to the most lenient of the disciplinary sanctions. But that is what Mr Hendy’s submission comes to.

Mr Hendy goes on to argue that it will be necessary to see how the Chief Executive reacts to this judgment. If he is held to have foreshadowed (in his 7 April appendix) that he would take into account impermissible considerations, he will need to revise his plans. When he has done so, Mr Hendy will be able to decide whether he wishes to make a further application for injunctive relief and, if so, whether it will need to include a paragraph corresponding to the old (c), as abandoned on 21 June. It was only abandoned then because it was premature, explained Mr Hendy. If after the judgment the Chief Executive still proposes to consider dismissal, then it might come into its own. It may thus be desirable for the court to give rulings now, if possible, with a view to pre-empting one or more re-runs.

Certainly, in his written response of 26 June, Mr Hillier submitted that now was the time to resolve all the issues and achieve finality. He anticipates that at some future date (perhaps six months hence) Mr Hendy will come back to the court and seek, despite the concession of 21 June, to obtain an injunction which would indeed have the effect of compelling the Trust to go on employing Dr Mattu. He argues that this is not permissible. “He should not be permitted to withdraw that contention but reserve the right to resurrect it in subsequent proceedings”. Mr Hendy must either seek such an injunction now, he argues, or not at all. Otherwise, further time and money would be wasted, contrary to both the overriding objective and the principle considered in Johnson v Gore Wood & Co [2001] All ER 481 and earlier cases such as Henderson v Henderson (1843) 3 Hare 100.

Mr Hendy is in effect seeking to maintain the argument that there is no room for departure from the Panel’s recommendation on sanction. Originally, the submission was very broadly expressed in his skeleton:

“The decision to reconsider penalty is … clearly perverse and irrational in light of the report of the Inquiry Panel chaired by an eminent Queen’s Counsel in this area of law, which after 25 days of hearing evidence at a hearing where all witnesses were subject to cross-examination and each party made closing submissions both orally and in writing, both on the facts to be found and on the questions of fault and recommendations to be made, recommended at the end of its second Report that a First Written Warning be given, the least severe sanction available, and, in effect, that dismissal was not warranted”.

That was the position he abandoned on 21 June. I consider the concession to have been rightly made. It seemed to me quite untenable. As I observed earlier, it is in the nature of a “recommendation” that, while it may have to be taken into account, it does not have to be followed.

If at some future stage Mr Hendy wishes to challenge a decision to dismiss as irrational, I would expect him to be met by a powerful Johnson v Gore-Wood argument (that he should have taken the point earlier). But I must not anticipate such an argument now. What I can say is that if Mr Hendy is inviting me to rule that the Chief Executive has already behaved irrationally in contemplating dismissal as a possible option I would decline to do so – not least because it would represent a new way of putting his case on which I have not (because of the concession of 21 June) heard full argument from Mr Hillier. But I do not believe that this is what he is now doing. I believe he simply wants to put down a marker for the future. That is naturally frustrating for the Defendant, as Mr Roberts wishes to know where he stands as soon as possible.

It will already have become apparent how central the Court of Appeal’s decision in Barros D’Sa was to the submissions in this case. As it happened, it concerned a former colleague of Dr Mattu employed by the same Trust under precisely the same conditions as those relevant to the present case. Before I proceed, it is appropriate for me to consider further the principles and guidance to be derived from that case, which I have already touched upon when summarising the Trust’s case on the disciplinary options.

Mr Barros D’Sa was a consultant general surgeon who was, following allegations of serious professional misconduct, suspended from duty on full pay. An inquiry panel was appointed in accordance with the Procedure, which I have already described, to investigate and report upon those allegations. It was found that one of the charges, relating to oppression of a junior doctor, had in part been established. The Panel there recommended, as did the Panel in the present case some years later, that dismissal would not be justified but that a first written warning would be appropriate.

Following the report, the next stage would be the disciplinary hearing before the Chief Executive (a predecessor of Mr Roberts), for which purpose the Trust produced a document seeking to rely on material which had not been the subject of any positive finding by the Panel. The particular matter concerned an alleged breakdown in the relationship of trust and confidence as a result of allegations made by Mr Barros D’Sa about management, and some of his colleagues, and a letter which he had sent to his member of Parliament. (It is necessary to have that well in mind, since Mr Hillier emphasises that this plainly extraneous factor is to be contrasted with the matters to which objection is taken in the present case, which he submits are much more closely connected to the subject-matter of the “charges” and findings of the Panel.)

Mr Barros D’Sa was granted an injunction by Blofeld J preventing the Trust from relying on such material at the disciplinary hearing. The Judge held that it would be contrary to natural justice, and to the terms of the Disciplinary Procedure, for matters which had not been the subject of any finding by the Panel to be taken into account when considering penalty.

It was argued in the Court of Appeal that the words “depending upon the circumstances” in the Procedure indicated that the Chief Executive was entitled to take into account, in deciding what disciplinary action to take, matters other than mitigation - including allegations which had not been the subject of any finding by the Panel. Moreover, it was submitted that if the relationship of trust and confidence had broken down that was a fact which could of itself be relevant in selecting a disciplinary sanction. Both arguments were rejected and the appeal was dismissed.

As often happens in litigation, there was little dispute between counsel as to the principles to be drawn from the Court of Appeal’s judgments. The problem was how to apply them to the present circumstances, which plainly differ in material respects from those arising in the Barros D’Sa case.

As I have already indicated, the Trust had produced for use at that disciplinary hearing what was called a “management case”. May LJ, at [4], referred to material contained within it under “Mitigation”, which he regarded as a “wholly misleading heading”, since it sought to embrace conduct which was essentially in aggravation, and which had not been the subject of any positive finding by the Inquiry Panel.

Mr Hendy made a number of submissions on the guidance to be found in that case and which, he said, was equally applicable to the present facts. First, it is to be noted that the Court of Appeal appears to have accepted the proposition in Blofeld J’s judgment that the relevant policy statement contained the complete disciplinary procedure of the Trust: see [21] in the judgment of May LJ. That is plainly right.

Secondly, Mr Hendy submits that an employer is not permitted to by-pass or dispense with the terms of the contractual disciplinary code on the basis that trust and confidence has broken down. That follows also from the judgment of Blofeld J, as cited with approval at [21], where he said that he was in no doubt that it would be a breach of natural justice for the Trust, at the disciplinary hearing, to rely on any matters (including allegations of lack of trust and confidence) which had not been the subject of a finding by the Inquiry Panel. The theme was, however, developed further by May LJ at [28]-[29]:

“It is, in my judgment, an intrinsic part of the structure (and indeed only fair) that the matters relevant to the sanction, subject to what may properly be called mitigation, should, in so far as they are adverse to the member of staff concerned, be limited to those which the panel has found. Otherwise the member of staff would be being sentenced for matters which had not been established against him by the proper contractual procedure.

It is plain that the defendants were intending to go beyond this in their management case, and that they were attempting to make a more serious case than the inquiry panel had found. That would have been unfair as well as being, in my judgment, contrary to the disciplinary procedure, properly understood. The claimant would, as I have said, have been at danger of being sentenced for an offence whose facts had not been found proved against him. If there are problems about confidence and trust that have not been found to amount to serious professional misconduct, these are inappropriate for consideration at a disciplinary hearing, following this panel’s inquiry at least. An employer who says that trust and confidence have broken down is not, in my judgment, entitled to dispense with the terms of a contractual inquiry process”.

This passage also plainly supports Mr Hendy’s third submission, which is that the Chief Executive may not try to establish a more serious case than had been found by the Panel. The other members of the Court of Appeal were in agreement and my attention was drawn to the following words of Dyson LJ at [34]:

“… In my view, very clear words would be required if matters entirely irrelevant to the gravity of the specific misconduct which has been investigated by the panel and any personal mitigation of the practitioner could be taken into account in deciding what disciplinary action to take”.

Likewise, at [38]-[39] Simon Brown LJ (as he then was) unhesitatingly rejected the construction of the “circumstances”, in paragraph 5.11 of the Procedure, as encompassing not merely the circumstances of the disciplinary offence of which the practitioner has been convicted, and his mitigation, but, in addition, anything else which might seem to the Chief Executive to bear upon the desirability or otherwise of continuing to employ him.

Fourthly, Mr Hendy invited my attention to the judgment of May LJ at [22], where again he was citing that of Blofeld J with approval, to the effect that the Trust is bound by the findings of an inquiry panel. So too, where the panel makes no findings, the Trust would not be entitled to raise other matters and make its own findings.

Fifthly, it is clear from the judgments of the Court of Appeal that they did not address directly an important question which arises in this case; namely, whether the Chief Executive is bound by what is said by the Panel as to “fault”, or whether he is entitled to substitute his own view (just as he plainly would be in relation recommendations on penalty). In that respect, I shall have to come to my own conclusion unaided by higher authority.

My attention was also drawn to another important passage in the judgment of Dyson LJ at [33]:

“There is no indication in the document that the panel is required to have regard to anything other than the gravity of the misconduct and any personal mitigation available to the practitioner in deciding what action to recommend; or that the Chief Executive is entitled to have regard to any wider considerations when deciding what action to take”.

He went on at [34] to identify (albeit, no doubt, not exhaustively) the sort of questions which it would be appropriate for the Chief Executive to ask himself. Primarily, he would be taking a view of the seriousness of the misconduct, as found by the Panel, and any personal mitigation put forward by the practitioner. Thus he might ask:

“How serious is the misconduct? Is this a first act of misconduct? Has it been proved or admitted that the practitioner had committed similar acts before? How long has he been practising? Depending on the facts of the case, these and no doubt other matters might well be relevant questions to ask …”.

It emerges from the Barros D’Sa case, at [38]-[39], in the judgment of Simon Brown LJ, as I have said, that it is not open to the Chief Executive in considering what, if any, sanction is appropriate to take into account any “circumstances” apart from those surrounding the disciplinary offence of which the relevant practitioner has been “convicted”. More specifically, it is not permitted to take into account general considerations as to the desirability or otherwise of continuing to employ the person concerned.

Although the Chief Executive must plainly take into account any matters of mitigation which may be advanced by the practitioner, he is not allowed to introduce extraneous matters for the purpose of aggravating the misconduct: see per May LJ at [4] and [20]. It was easy in the Barros D’Sa case itself to identify the matter in question (concerning the letter to the member of Parliament) as being truly extraneous. It will not always be so obvious. The right test would appear to be whether or not the “aggravating” factors arise directly out of the Panel’s findings of fact in relation to one or more of the relevant “charges”: see also Barros D’Sa at [21], [25] and [28]-[29].

It is also relevant to note the contents of [27] in the judgment of May LJ:

“The submission in the round, nevertheless, is that the Trust has taken disciplinary proceedings and that the claimant in the course of the inquiry hearing made allegations about the management of the Trust and of some of his colleagues. The panel has found that some of these were not substantiated, and the fact that these were part of his conduct of his case before the inquiry entitles defendants to take them into account at the disciplinary hearing consequent upon the panel’s finding”.

This contention is very close to that underlying the Chief Executive’s approach in the present case. May LJ went on, however, at [28] to express agreement with the reasoning of Blofeld J and stated that the only matters adverse to the practitioner to be taken into account at the sanction stage are “those which the panel has found” (see para. [30] above).

This seems to me to support Mr Hendy’s more general submission that the Chief Executive is not entitled to take into account the manner in which the practitioner has chosen to conduct his case before the Inquiry Panel. That proposition would accord also with the general thrust of the judgments, and with the Court of Appeal’s conclusion that the Chief Executive cannot rely upon a general breakdown of trust and confidence. For example, it would not be possible to increase the penalty because a practitioner had chosen to criticise colleagues in the course of the disciplinary hearing simply on the basis that this in itself would or might undermine trust and confidence.

In resolving the issues before me, it is plain that I must pay very close attention to the principles emerging from those Court of Appeal judgments.

Mr Hendy developed another layer of submissions, potentially relating to more than one issue, which rested upon an implied term of trust and confidence, against which to judge the Trust’s conduct of the disciplinary proceedings. I shall return to this later, so far as is necessary, but for the moment I intend to concentrate on Mr Hendy’s primary case and to try to define the issues relevant to that. It is based on the express terms of the Procedure, which is incorporated in the contractual disciplinary framework.

It is appropriate to record that no suggestion was made before me that the Chief Executive has acted otherwise then in good faith or that he is disqualified from progressing the disciplinary process through bias. The debate has focussed on the extent of his powers under the contractual Procedure. It is perhaps worth noting that Mr Roberts took up his current post on 31 August 2002, some six months after Dr Mattu was suspended. He was not involved personally in the chain of events leading up to the suspension.

There is no doubt that the Panel’s findings of fact are binding on both parties. So too, it is common ground that the Chief Executive must have regard to any matters advanced by Dr Mattu by way of mitigation before determining the appropriate sanction (and I bear in mind the emphasis placed by May LJ at [28] on “what may properly be called mitigation”). There is perhaps a lack of clarity in the Procedure, however, when it comes to deciding what else he may legitimately take into account (if anything). That is probably the critical area of contention between the parties.

Mr Hendy takes a relatively narrow view, arguing that the Chief Executive is confined to the findings of fact on the “charges” contained in the terms of reference themselves, and that he should not be permitted to embrace “collateral” findings.This phraseology is notoriously ambiguous. Would “collateral findings” include subsidiary findings of fact made en route to deciding the primary “charges”? Would the phrase include incidental findings, which were made “by the way” and did not even form part of the reasoning which led to a finding of either “guilty” or “not guilty” on a particular charge? Would it include a finding that in some respect(s) Dr Mattu was not telling the truth, or was being evasive, or was actually lying?

Mr Hillier invites the court to take a broader view. He says that it would be unreal, or even absurd, if the Chief Executive is to be precluded from taking into account any of the findings of fact after this time-consuming inquiry and fact-finding process. I rather agree that it would be impractical if the Chief Executive were free, at the stage of selecting a disciplinary sanction, to come to a range of different findings of fact, even findings inconsistent with those of the Panel, provided only that they could be classified as “collateral”. It must be right that, in so far as any fact is relevant to the selection of a sanction, and has already been found by the Panel one way or the other, its finding would have to be accepted. It is not legitimate to take into account “facts” which have not been found by the Panel – nor yet “facts” which are irrelevant.

A related issue, but one which is distinct in the light of the contractual wording, is where the ultimate responsibility lies for determining whether the findings of fact give rise to “fault” and, if so, how the degree of fault is to be “calibrated” on the scale of gravity. That is a matter of contractual construction – obviously not rendered any easier by the apparently conflicting terminology in relation to the Panel’s role contained in paragraphs 5.9(b) and 5.10. Does it express a “view”, or does it make a “finding”? If it truly has responsibility to make a finding, it becomes difficult to see how the Chief Executive could substitute his own independent “finding” on fault. Mr Hendy again seeks to confine his role. He says that “fault” and “calibration” are matters for the Panel. Yet since, as he now concedes in general terms, the Chief Executive has a discretion on what disciplinary action to take and, in exercising it, is not bound by the Panel’s “recommendations”, he plainly has to form some sort of judgment on the seriousness of any misconduct which has been proved. It would not necessarily follow, however, that he is free to go back one stage and make his own findings of “fault”.

For this Panel to describe Dr Mattu’s conduct as “relatively serious” is uninformative – “relatively” compared to what? Thus there must be some room for the Chief Executive to make a personal assessment on seriousness. It would be very odd in the criminal context if the sentencing judge were not permitted to assess the gravity of the crime in selecting an appropriate penalty. That is surely one of the primary tasks of a sentencer. Moreover, as Dyson LJ observed in Barros D’Sa at [34], it was indeed appropriate for the Chief Executive to ask “How serious is the misconduct?”

One of the issues formulated by Mr Hendy was:

“In what circumstances, and to what extent, the Chief Executive may depart from the recommendation of the Panel as to disciplinary sanction?”

There is an analogy with a pre-sentence report in the criminal process. A judge may be required to take account of it but, nevertheless, must discharge a personal duty to select the most appropriate sentence according to law and having regard to the public interest. Every day in England and Wales judges are taking account of recommendations for a community penalty, but none the less imposing custodial sentences. Although not strictly relevant to a matter of contractual construction, I have already noted that the Panel itself recognised that the Chief Executive may have more information than the Panel and that this might have a bearing upon his decision.

This is one of the less difficult issues for me to resolve. Provided the Chief Executive takes into account the Panel’s recommendation(s) and its underlying reasoning, he is entitled to exercise his own judgment and to depart from any such recommendation. It goes without saying, however, that in doing so he must take into account only such facts and matters as this contractual Procedure, as interpreted by the Court of Appeal, would permit as being relevant. It is this latter question which requires further analysis.

It seems to me clear that the Chief Executive is entitled (and, indeed, arguably bound) to have regard to express findings of fact on the “charges” themselves, any express findings relevant to the “charges”, and also any finding which may truly be regarded as a necessary inference from those conclusions which are expressed. That is essentially because there is no room for the Chief Executive to usurp the function of the Panel when it comes to finding relevant facts. Under the contract, it is the Panel which is charged with the exclusive responsibility for finding the facts.

Moreover, what are relevant to a determination of any of the “charges” in the disciplinary proceedings are the events leading up to the alleged misconduct. In this case, those events are said to have occurred largely in 2001 or 2002. It is elementary that the disciplinary process is concerned with Dr Mattu’s conduct within the relevant period. The process is not concerned to make findings in relation to subsequent behaviour such as, for example, his conduct during the disciplinary hearing or allegations he may make as part of that process. The Panel may have chosen to disbelieve Dr Mattu’s account of events, as given in 2005, but what matters for the disciplinary process is the conclusion reached on the misconduct alleged several years earlier. That approach seems to me to be entirely consistent with paragraphs [27] and [28], in particular, in the Barros D’Sa case.

This brings me to the relevance of whether or not Dr Mattu could be said to have “lied” or given evidence to the Panel which was “untrue”. First, it is important to note that despite being invited on behalf of the Trust to make express findings of lying or dishonesty, the Panel drew back from doing so. I am prepared to accept that there are some examples of Dr Mattu’s evidence being rejected where it may be said that there is a compelling inference that the Panel thought that he had deliberately misled them or lied. Even so, however, any such conclusion would represent a finding about Dr Mattu’s conduct in 2005. The function of the Panel was rather to arrive at findings about his conduct, in a specific context, in 2001 or 2002.

Likewise, it is those findings which are relevant to the question of disciplinary action. If it be right, for example, that Dr Mattu brought improper pressure to bear on a research fellow in 2001 or caused a letter to be dishonestly backdated in 2002, then these would be the matters to be assessed and, where appropriate, made the subject of disciplinary action. The fact that he has denied such misconduct in the course of the disciplinary hearing, even to the extent of lying about it, would not appear to be a legitimate factor to take into account in assessing penalty. In common parlance, it may very well be that one could speak of any such untruths as “aggravating” the original misconduct. But matters of “aggravation” in this sense appear to be excluded by the terms of the contractual disciplinary Procedure. Matters of mitigation, advanced by or on behalf of the practitioner, are expressly to be taken into account. It is important to remember, on the other hand, what was said by May LJ in Barros D’Sa at paragraph [20] on the subject of “matters of aggravation”, which “should not have been included at all” in the Trust’s management case.

It may be that my conclusion will not make very much difference in practice, but the distinction of principle would seem to be important. During the course of argument, I drew an analogy with a charge of perjury. The fact that a judge may disbelieve a witness, whether in civil or criminal proceedings, plainly does not entitle him to proceed to punish the person for the offence of perjury. That would require separate proceedings to be instituted with all the surrounding safeguards. Upon investigation, it can sometimes emerge that what appeared to be a dishonest answer does not in fact amount to the offence of perjury.

A striking example of this, to which reference was made in argument, was that of Mr Tommy Docherty. He had admitted in cross-examination in the course of a libel action that he had told a “pack of lies”. At his subsequent trial for perjury the judge, in summing up, said that the witness box could be the loneliest place in the world and that it was possible, under “fierce” cross-examination, based on false instructions, to make admissions without really knowing what one was saying. Mr Docherty told the jury that he had been so terrified that he would give any answer to get out of the witness box. He was duly acquitted on two counts of perjury. (This case is reported as a news item on page 4 of The Times for 21 October 1981.)

That is, of course, an extreme example but it illustrates how important it can be to recognise a charge of perjury as a distinct matter requiring investigation on its own terms. Here, what the Chief Executive has effectively been doing is to rely on additional misconduct, in the form of “quasi-perjury”, and to treat it as already a foregone conclusion. In principle, that would not seem to be acceptable. Nor would the problem be cured by having the Chief Executive conduct a mini-trial of the “quasi-perjury” within the Disciplinary Hearing. That is not its purpose and, in any event, the proper procedure would have been by-passed. Since my conclusion on this issue turns upon the express provisions of the contractual Procedure, there is no need for me to address in this context Mr Hendy’s alternative argument based on an implied term.

I said earlier that I would return to counsel’s submissions for and against the need to imply a term in this form of contract. Mr Hendy argued that the Trust’s proposed course of action would be in breach of terms to be implied into the contractual Procedure; alternatively, a breach of an obligation of trust and confidence to be implied into every contract of employment (save in respect of any actual decision to dismiss – a stage not yet reached on the facts of this particular case). Since I have found it possible to determine the issues on the present application by reference to the express terms of the contractual Procedure, it is strictly unnecessary for me to consider these arguments, but I will do so briefly out of deference to counsel’s careful submissions.

The criteria for implying terms in an employment contract, where appropriate, are different from those traditionally applicable in a commercial contract and are founded upon reasonableness, fairness and a consideration of the balance of competing policy considerations: Johnson v Unisys Ltd [2003] 1 AC 518 at [20]; Crossley v Faithful & Gould Holdings Ltd [2004] ICR 1615 at [36].

Mr Hillier’s primary response is that it would not be right, in the light of the law as it stands, to imply any terms relating to the convening and/or conduct of the disciplinary hearings. He submits that there would potentially be statutory remedies available, in respect of any lack of fairness as to these matters, by way of unfair dismissal: Johnson v Unisys Ltd [2003] 1 AC 518; McCabe v Cornwall County Council [2005] 1 AC 503; Mason v The Governing Body of Ward End Primary School (unreported), 12 April 2006, EAT (Appeal No UKEAT/0433/05/ZT).

Non-compliance with a contractual disciplinary procedure may or may not render a dismissal unfair, which will depend on the circumstances of the case in question. There are certain minimum requirements (e.g. to give notice of charges, to conduct a hearing and afford a right of appeal). Failure to comply with such obligations will entail that any dismissal is unfair and lead to enhanced compensation: see s.98A of the Employment Rights Act 1996 and ss.29 and 31 and Sched. 2 of the Employment Act 2002.

Against this statutory background Mr Hillier contends that there is simply no room for implication. As to the generally acknowledged term of trust and confidence, he relies on the Johnson case as excluding its application to termination. Mr Hendy naturally accepts the general principle which Mr Hillier invokes. He recognises that the implied term of trust and confidence applying generally in contracts of employment has been held by the House of Lords to have no application to the actual termination of the contract, since it is concerned with the maintaining of trust and confidence during its subsistence: see e.g. Johnson v Unisys Ltd, cited above, at [46] (Lord Hoffmann). But he founds his argument on the so called “Johnson exclusion area”. This is to say, he focuses upon the uncertain period prior to termination. It is debatable how far back the “exclusion” should be applied: see e.g. McCabe v Cornwall County Council, cited above, at [27]-[33]; King v University Court of the University of St Andrews [2002] IRLR 252.

Mr Hendy draws a distinction between the facts in Johnson itself, where the claimant sought damages in respect of a dismissal that had taken place, and those now before the court – since Dr Mattu’s contract still subsists and the contractual procedures are yet to run their course. He therefore places considerable reliance on the reasoning of the Court of Session in the University of St Andrews case. This he summarised in three steps:

I find this reasoning persuasive, as a matter of logic, but I do not believe that it adds anything towards resolving the present dispute. The matter is amply covered by the express terms of the Procedure. In the light of those terms, I am about to state my conclusions as to what the Chief Executive may, and what he may not, legitimately take into account and how he should go about it procedurally. It may well be that there is, hovering in the background, a parallel implied term of trust and confidence, but I do not see that it adds materially to the obligations spelt out in the Procedure recited above. In a case where those detailed provisions apply, the interesting theoretical debate as to how far the Johnson exclusion extends has no relevance. As the parties to this contract come into the home straight leading up to the decision on what, if any, sanction to apply, the process is so hedged about by explicit requirements that there are no significant gaps needing to be plugged by the implication of terms. I find it difficult to imagine a question to which such an implied term could supply an answer which was not to be found in the express provisions.

I have come to the following conclusions: