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Dismissal Hearings and Article 6

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[Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary]

Is Article 6 engaged when an NHS employer dismisses a consultant for misconduct?

No, says the Court of Appeal in Mattu v University Hospitals of Coventry and Warwickshire NHS Trust. All three judges held that a decision to dismiss is not a determination of the employee's civil rights, but the exercise of a contractual power. Dr Mattu argued that dismissal by the Trust made him unemployable in the NHS, effectively determining his right to practice his profession, but that was rejected both at first instance and on appeal as not made out on the evidence. Burnton and Elias LJJ went further, doubting Smith LJ's obiter suggestion in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2010] EWCA Civ 69 that Article 6 might be engaged where an NHS doctor faces charges so serious that, if they are found proved, he will effectively be barred from employment in the NHS. Sedley LJ expressly distanced himself from those doubts.

The Court of Appeal also considered and rejected contentions that the Trust had incorrectly classified the allegations against Dr Mattu as not being of professional misconduct; and that a refusal to adjourn the disciplinary hearing had been a breach of an implied contractual obligation of fairness.