No uniform approach
Date: 23 September 2011
Authors: Victoria von Wachter, Alex Ustych
Issue: Vol 161, Issue 7482
Categories: Features, Employment, Disciplinary&grievance procedures
Statutory disciplinary procedures in regulated professions create a minefield of potential conflicts concerning employees’ rights and the evidence admissible in proving those rights had been breached.
Two such conflicts are particularly topical:
- reliance on the conduct/content of statutory disciplinary proceedings to found an employment tribunal (ET) claim; and
- the application of Art 6 of the European Convention of Human Rights (the Convention) to “career-ending” disciplinary proceedings.
It is increasingly common for employees in the regulated professions (doctors, nurses, police officers etc) to attempt supporting ET claims based on what was done or said in statutory disciplinary hearings. Often, this is an attempt to have another bite at the cherry by securing a rehearing in front of an ET. Traditionally, such attempts have been roundly rebutted by invoking absolute judicial immunity, which protects those involved in proceedings (or in their preparation) from liability. However, following the Court of Appeal decision in Lake v British Transport Police [2007] EWCA Civ 424, [2007] All ER (D) 77 (May) practitioners have grounds to wonder if judicial immunity remains the impenetrable shield it once was. Recent case law sheds light on this issue.
Article 6 of the Convention adds further complications. Article 6, if applied, could lead to a sea-change in how disciplinary proceedings are carried out. The key question which recent cases attempt to answer is: what makes a disciplinary decision “career-ending” and when does Art 6 apply?
Immunity: the traditional position
Immunity applicable to judicial and “quasi-judicial proceedings” is a mainstay of English law. The House of Lords in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, [2000] 4 All ER 193 confirmed that immunity:
- extends to anything said or done during judicial or “quasi-judicial” proceedings;
- prevents claims based on witness evidence having been false, malicious or careless; and
- is absolute and not subject to the exercise of the courts’ discretion.
Although Darker was decided within the police context, its conclusions are regularly applied to other regulated professions. As the immunity is such a potent shield, the courts are circumspect in its application by limiting it to bona fide quasi-judicial bodies only. For example, the Employment Appeal Tribunal (EAT) overruled the ET’s classification of a senior police officer’s decision to dispense with the services of a probationary police constable as “quasi-judicial” (Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] 4 All ER 834). Immunity is also limited by the fact that witness statements prepared for purposes of a disciplinary investigation rather than a disciplinary hearing may be excluded from the scope of this immunity. (How this stacks up with the second limb of Darker remains a mystery to the authors!)
Immunity was confirmed to apply to disciplinary proceedings in Heath v Commissioner of Police of Metropolis [2004] EWCA Civ 943, [2004] All ER (D) 359 (Jul) where the claimant sought to found her claim of sex discrimination on the conduct of the police disciplinary panel and the commissioner’s barrister at the hearing. This was an archetypical case of judicial immunity as it was based on what was said or done during quasi-judicial proceedings, and the claim failed accordingly.
Erosion of the traditional position
Darker and Heath suggested that the courts’ application of judicial immunity is extremely robust. That impression was qualified by the Court of Appeal decision in Lake. Mr Lake was dismissed (by a police disciplinary panel). He claimed that the laying of charges against him was a detriment following a protected disclosure within the meaning of s 47B of the Employment Rights Act 1996 (ERA 1996), and that he was unfairly dismissed for the same. The ET held (and EAT confirmed) that immunity from suit prevented the “re-opening”/”impeaching” of the board’s decision.
Lake appealed to the Court of Appeal. Crucially, he framed the appeal in the terms that he did not seek to bring an action based on the board’s decision but rather wanted the ET to draw its own conclusions based on the facts adjudicated by the board.
The Court of Appeal granted his appeal, on the grounds that:
- Judicial immunity was not being challenged by Lake as he did not seek to bring a claim based on anything that happened at the disciplinary (or its outcome—cf Heath). Thus, this was not “impeachment” of the decision.
- The British Transport Police did not submit that the ET was bound by the board’s decision or that the statutory appeals procedure excluded the ET’s ability to review the facts on which the board ruled.
- ET claimants were thus entitled to go behind the board’s decision provided that no actual claim based on the events of the proceedings was mounted.
How does this undermine accepted notions of judicial immunity? The Court of Appeal ruled in Lake’s favour because he did not attempt to found his claim on what was said or done in the proceedings. To that extent, judicial immunity remained intact. On the other hand, the effect of the Court of Appeal’s decision was to allow Lake to have his dismissal proceedings re-heard. This appears to undermine the established principle that the ET may not substitute its decision for that of the employer but only establish whether it fell within the band of reasonable responses Post-Lake decisions on judicial immunity as applied to disciplinary proceedings are of some assistance in pinpointing its impact.
In the context of solicitors’ disciplinary proceedings, the High Court in Baxendale-Walker v Middleton [2011] EWHC 998 (QB), [2011] All ER (D) 242 (Apr) struck out claims against parties involved in solicitors’ disciplinary proceedings against the claimant, as the hearing was covered by judicial immunity and the claims amounted to a collateral attack upon the final decision.
The EAT decision in Dr J S Parmar v East Leicester Medical Practice [2011] IRLR 641, [2011] All ER (D) 92 (Apr), suggests that attempts to “water down” judicial immunity will be forcefully resisted. Dr. Parmar submitted that immunity does not apply to victimisation claims, but the EAT refused to differentiate between victimisation and other ET claims in this respect. The EAT also confirmed that absolute immunity was not contrary to Art 6 of the Convention or the EU Directives.
How far can judicial immunity stretch?
These recent cases illustrate that the core protection offered by judicial immunity survives the decision in Lake. However, one question remains unanswered: can a claimant rely on something said during the disciplinary proceedings as evidence rather than as the basis for a claim?
There is a real chance that the claimant will be able to rely on such evidence. The scope of judicial immunity (as formulated in Darker and Heath) gives immunity “from any action that may be brought against them on the ground that things said or done by them in the ordinary course of proceedings” only.
In effect, this sidesteps liability, but has no real effect in rendering what was said inadmissible in future hearings. None of the case law suggests a formulation of immunity that encompasses evidence rather than liability.
This conclusion is supported by the stance of the Court of Appeal in Lake, seeking in a common sense way to balance the conflicting interests. The Supreme Court dealt with this conflict of public policy v fairness point without getting a nosebleed in Tariq v Home Office [2011] UKSC 35, [2011] All ER (D) 108 (Jul). Mr Tariq, an immigration officer, had his security clearance revoked due to family links with an individual convicted of terrorism. He alleged race discrimination. National security issues prompted the closed material procedure under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) where Sch 1, para 54 was used. The Supreme Court held that the use of special advocates in these proceedings was an adequate safeguard and that there was no absolute requirement for the claimant to know the detailed allegations against him.
Judicial immunity substantially survived the decision in Lake, but it cannot be seen as an impenetrable shield as far as the ET/civil courts are concerned. The courts will attempt to balance the competing interests in each case, which may (in appropriate cases) lead to the claimant being allowed to rely on evidence given in the disciplinary proceedings as long as he does not base the claim on that evidence. In the courts’ attempts to deliver some modicum of a fair hearing even when immunities/national security considerations apply, traditional boundaries may become blurred and we may yet see the Supreme Court stepping round this subject as if on hot bricks.
What is a “career-ending” decision?
Readers of the NLJ will be familiar with the issues concerning Art 6 application to disciplinary proceedings, most recently grappled with by the Supreme Court in R (on the application of G) v the Governors of X School [2011] UKSC 30, [2011] All ER (D) 220 (Jun). The case confirms that where the disciplinary process has the potential to effectively end a person’s career within a given field or at least have a “substantial influence or effect” on a secondary set of disciplinary proceedings (eg a fitness to practice hearing), Art 6 is engaged (see All's fair).
Article 6 could arguably be engaged even where there are no follow-on proceedings to revoke a licence or right to practise. These are cases where dismissal is a de facto bar to re-employment within that sector—because there is a single employer or (arguably) an extremely close-knit employer community.
Kulkarni v Milton Keynes Trust [2009] EWCA Civ 789, [2009] All ER (D) 248 (Jul) is a prime example. A trainee doctor was not permitted to instruct counsel at a disciplinary hearing of a very serious allegation. In granting his appeal, the Court of Appeal, obiter, concluded that Art 6 was engaged due to gravity of the charges, the fact that the NHS is essentially one body, and that a trainee doctor can only complete his training within the NHS. Thus, a clear case of a de facto bar on practice arose.
By contrast, Art 6 was not held to apply in R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970, [2011] All ER (D) 156 (Apr). A senior surgeon sought judicial review of the decision to compose a disciplinary panel largely of staff from the hospital where he worked. The High Court ruled that there must be a substantial influence/effect on the determination of the right to practise, beyond mere loss of job. As the disciplinary was purely internal and there had been no formal notice/warning issued by the General Medical Council (GMC) in respect of the matter and he could still find employment within the NHS, Dr Puri was not deprived of right to practice. Accordingly, Art 6 was not engaged.
The courts’ pragmatic approach is borne out in Raj Mattu v University Hospital of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB). The disciplinary process and dismissal of the claimant cardiology consultant have not resulted in GMC proceedings and it was open to the claimant to practise his profession in the private sector as well as being self-employed. These options were clearly not open to Mr Kulkarni, as he was a trainee.
It is not difficult to envisage cases (within and outside the regulated professions) where the objections to Art 6’s application in Raj Mattu and Puri would not apply. Take, for instance, a specialised profession within a small industry, such as a civilian forensic/crime scene technician employed by the police. If disciplinary proceedings against the technician were for gross incompetence or dishonesty, this would almost certainly make him unemployable within police forces as a technician (due to the close links between police forces and the need to use unimpeachable forensic staff when conducting criminal prosecutions). This situation is far closer to that found in Kulkarni than in Puri, and Art 6 is likely to apply. The same argument can be made in relation to numerous other professions within closely-knit industries (barristers’ clerks, bankers at “boutique” investment banks etc.)
There are compelling arguments against this expansion beyond the regulated professions. If such expansion is permitted, Art 6 may, in time, become engaged whenever an employee’s reputation is arguably damaged. This is the classical “slippery slope” argument that sometimes finds favour with the courts. It remains to be seen whether strict limitations are imposed by the courts.
The balance remains in place…for now
Employers within the regulated professions are certain to retain the benefit of judicial immunity in relation to statutory disciplinary proceedings, but would be well advised to be aware of its limits. Along with employers in niche industries, they can also expect rapid developments on the Art 6 issue as a test case on “ career-ending” decisions not involving doctors is all but inevitable.
Victoria von Wachter & Alex Ustych, 5 Essex Court Chambers.
Victoria von Wachter litigated in the case of Lake v British Transport Police.
E-mail: Wachter@5essexcourt.co.uk & Ustych@5essexcourt.co.uk
Website: www.5essexcourt.co.uk
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