A Doctor’s Right to a fair trial in Employment Disciplinary Hearings
Article By DDS Employment Law Lawyer David Welch
In the increasingly covid affected technological age an increasing number of employers are using Zoom, Microsoft teams or other platforms to hold remote hearings when disciplining staff.
An important question arises as to whether this change to remote hearings is fair to the person, or persons being disciplined, and whether such practice should continue beyond Covid restrictions.
It is trite to repeat that all those accused are entitled to a fair trial, but in the workplace during Covid should that still apply?
Since March 2020 in both the Criminal and Civil courts there has been a greater use of remote hearings, but for the most part these have been confined to interim hearings rather than full blown trials where evidence can be challenged in person. Currently the criminal system is getting back to in-person hearings, but some and most notably the Lord Chief Justice, has called for the required number of jurors to be reduced from the normal 12 for less serious offences, not going as far as reducing the full complement for serious assaults, rapes, and homicide.
This article however concentrates on the rights of employees in the workplace and whether they have entitlement to an in-person hearing, and if this is refused what rights do they have to challenge this.
In the NHS healthcare sector there are well-established disciplinary procedures which set down the steps that need to be taken by an employer to ensure a fair hearing. ACAS of course also produces generic guidelines on these matters. However, ACAS do not appear to have produced any updated guidance on this matter since the advent of the Covid period.
In the case of doctors facing disciplinary action they are subject to their employer’s versions of Maintaining High Professional Standards in the workplace (MHPS). The employers can also receive help and guidance from the independent organisation which used to be called NCAS, but is now known as “NHS Resolution”.
Is it important for an employee to have an in-person hearing? Part of the justification for doing so is that it enables themselves, or their representative, to closely assess the demeanour of witnesses, which is arguably more difficult when there is the protective layer of a computer screen.
It is also a widely held belief that individuals are more likely to tell the truth when they are physically present in a formal setting, and subject to cross examination by a representative, who can look them in the eye when posing questions and use this closeness to be more readily equipped to challenge the veracity of the evidence.
Most witnesses in my experience would prefer not to be physically present. That is however not a reason for making the process less fair for those accused. Representatives/those accused need to be able to probe, confront, insinuate, and undermine the evidence of witnesses, in particular when there are possible serious consequences such as dismissal, a referral to the GMC and the possible end of a doctor’s career. Remote hearings severely affect the possibility of those skills in challenging witnesses being properly utilised, and being successful.
The old maxim that “Justice needs to be seen to be done” is still relevant today. Remote hearings are a poor and somewhat lazy substitute, which favour employers.
Unfortunately, some NHS employers unwilling to have live hearings have relied upon the wording in the guidance produced by NHS Resolution/ PPA on 22.04.20 to deny the employee being disciplined the undoubted benefit of a live hearing. The guidance set out in paragraph 5 headed Panel hearings states “on completion of an investigation a decision would need to be made about the categorisation of concerns and whether these falling within conduct, health or capability or a combination of these as this will determine the process that should be followed. (This is standard advice and does not actually factor in the Covid situation.) In the event a panel hearing is considered necessary because of the serious nature of the concerns or because there is a dispute about the content of the investigation report this is likely to need to be postponed because of capacity issues until the outbreak is over. It then continues “If the panel is to proceed and utilise appropriate panel members who are not required for Covid – 19 activity, for example staff who are self-isolating, this must be held online and there should be discussion as to how this may be arranged and conducted without compromising perceived fairness”. Of course, the above advice is both out of date and not in line with the science or prevailing government advice.
With all due respect to the author of the above the guidance is both muddled and contradictory. On the one hand it appears to suggest that if there is an issue about the investigators report/serious nature of the concerns the matter should be postponed until the outbreak is over. Of course, the current situation is that the Covid outbreak is not over. However, the next sentence of the guidance is concerned primarily with panel members, taking no account of the doctor undergoing the procedure, or the views of any witnesses called by either side, or any other staff involved. In any event it does belatedly suggest that there should be a discussion concerning fairness, but then fails to specify who should participate in such a discussion, and fails to address any notion of the rights concerned. Such discussion in my view must be held with the doctor concerned and their representative and their view should prevail.
More recently (June 2021) an adviser from NHS Resolution/Practitioner Performance Advice proffered the following advice regarding a particular employee who was facing an imminent disciplinary hearing. They stated that “we discussed (with the employer) that MHPS does not exclude a panel being undertaken virtually and does not stipulate a face-to-face process with MHPS being drafted prior to implementation in June 2005. PPI are aware that NHS organisations are undertaking panels virtually at this time, similarly this has also been occurring within the judicial system. I suggested that you should obtain senior HR and legal advice. You may also wish to contact the GMC to ascertain the current practice in relation to virtual hearings which they undertake”. I am unaware of any other advice produced by this body.
Their point regarding a face to face process is a weak one as self-evidently no one would have had it in their mind in 2005 that Covid would emerge and affect matters in the future. It also appears rather ill informed of them to be unaware of the GMC position.
It is also notable that they did not suggest that any discussion about the appropriate location of a hearing should take place with the individual employee, and/or their representative prior to a decision being made. The concept of fairness cannot be a one-way street, and not one to be determined solely by the employer.
Clearly the current state of the UK Covid/lockdown has changed significantly from that prevailing in March 2020, but that guidance does not appear to have been updated.
The General Medical Council, who are based in Manchester, are currently in a different situation because of the current high incidence of the Delta Variant there but the Nursing and Midwifery Council (NMC), which is primarily London based, are willing to hold live hearings when the nurse/representative seeks this. This demonstrates fairness and an acceptance that the perceptions of those accused are critical to the question of fairness.
Even if there is a perceived danger in holding disciplinary hearings on hospital sites (which is not accepted providing proper precautions are taken and prevailing Government guidance is followed) most NHS employers have either separate buildings on site and/or other office buildings sited away from a hospital setting, so that there is no obvious danger caused to hospital staff, or patients, or to those attending the hearing.
Those doctors facing disciplinary procedures are entitled to lodge a grievance and/or, contact the Non-Executive Director assigned to the case, to address procedural matters if they are refused a live hearing.
Ultimately if unsuccessful in persuading the employer to allow a live hearing they could seek a court injunction.
At the time of writing the government rules are that most restrictions will be lifted on July 18th. Given that, there is no reason for continuing the practice of remote hearings.
The simple resolution for all pending disciplinary cases is to hold them in person unless the accused person prefers otherwise. All new hearings should arguably be in person.
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(9 July 2021)