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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kulkarni v Milton Keynes Hospital NHS Foundation Trust & Anor  EWCA Civ 789 (23 July 2009)
Cite as: (2009) 109 BMLR 133,  ICR 101,  EWCA Civ 789, 109 BMLR 133,  LS Law Medical 465,  IRLR 829
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queens Bench Division
Mr Justice Penry-Davey
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE WILSON
| Kunal Kulkarni
|- and -
|Milton Keynes Hospital NHS Foundation Trust
- and –
The Secretary of State for Health
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Andrew Stafford QC and Mr Damian Brown (instructed by Messrs Hammonds) for the Respondent
Miss Sarah Lee (instructed by The Department for Work & Pensions, Litigation Division) for The Secretary of State for Health (Interested Party)
Hearing dates : 17/18 February 2009 &19 May 2009
Crown Copyright ©
Lady Justice Smith:
The application for interim relief
The judgment of Penry-Davey J
The appeal to this Court
The contractual documents
"17. The provisions relating to disciplinary procedure appear in section 42 of the General Whitley Council Conditions of Service as incorporated by paragraph 189 of the Terms and Conditions of Service"
189.a. In England, wherever possible, any issues relating to conduct and capability should be identified and resolved without recourse to formal procedure. However, should an employing authority consider that a practitioner's conduct and capability may be in breach of the authority's code of conduct or that the practitioner's professional competence has been called into question, the matter will be resolved though the authority's disciplinary or capability procedures (which will be consistent with the 'Maintaining High Professional Standards in Modern NHS' framework,) subject to the appeal arrangements set out in those procedures. "
"At any stage of this process (the investigation) – or subsequent disciplinary action – the practitioner may be accompanied in any interview or hearing by a companion. In addition to statutory rights under The Employment Act 1999, the companion may be another employee of the NHS body, an official or lay representative of the British Medical Association, British Dental Association or defence organisation; or a friend, partner or spouse. The companion may be legally qualified but he or she will not be acting in a legal capacity. "
"21. The hearing is not a court of law. Whilst the practitioner should be given every reasonable opportunity to present his or her case, the hearing should not be conducted in a legalistic or excessively formal manner.
22. The practitioner may be represented in the process by a friend, partner or spouse, colleague or a representative who may be from or retained by a trade union or defence organisation. Such a representative may be legally qualified but they (sic) will not, however, be representing the practitioner formally in a legal capacity. The representative will be entitled to present a case on behalf of the practitioner, address the panel and question the management case and any witness evidence."
"It should be noted that the policy and procedure incorporates the new framework covering the new disciplinary procedures for doctors and dentists employed in the NHS. This new framework is contained in Maintaining High Professional Standards in the Modern NHS and should be referred to in conjunction with this policy and procedure when dealing with cases involving a doctor or dentist."
"A member of staff required to attend either an investigative interview or a formal disciplinary hearing at any level within the Procedure will have the right to be accompanied by a representative of a trade union/professional organisation, by a work colleague, or friend, partner of spouse not acting in a legal capacity (companion). The trade union/professional representative or companion will be allowed to present the case on behalf of the member of staff and to question any witnesses called. The member of staff should, however, respond personally to questions posed by the investigating manager or disciplining manager, as appropriate."
Submissions in respect of the construction of the contract
"In defining the autonomous meaning, for convention purposes, of 'civil rights and obligations' in art 6(1), the court has chosen to give the expression a broad meaning, so as to embrace some administrative and disciplinary decisions. This has the consequence that decisions in fields such as this are routinely made in the first instance by bodies that do not have and are not intended to have the independence and impartiality required by art 6(1). The court has not however, held that the making of an initial decision by a body which does not meet convention standards of independence and impartiality necessarily taints or invalidates the further stages of decision-making consequent on that initial decision …. But, as it was put in Albert v Belgium (1983) 5 EHRR 533 at 542 (para29):
'in such circumstances the Convention calls for at least one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1) or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1). '"
Lord Justice Wilson:
President of the Family Division: