The applicant was a consultant breast care nurse. Issues arose in relation to the consultant for whom she worked and the investigation was widened to include the applicant. The investigation took place over a number of meetings and there were various delays in that process while the applicant insisted on her right to be accompanied. This application concerned disciplinary proceedings, including a disciplinary hearing, whereby the applicant said that such a hearing would: (1) be in breach of her contract of employment, because she has been refused the right to legal representation; (2) she had been refused the provision of further information; (3) she had been told that she was the subject of a police investigation and that made it unfair to continue with the disciplinary proceedings; and finally (4) she had expert evidence on her competence to take part in the hearing and it would be unfair to permit the hearing to continue. She was seeking an interim injunction preventing the defendant from carrying out the disciplinary proceedings.

The applicant's application was refused. Taking the grounds in turn: 1) there was no unfairness or breach of contract, or arguable breach of contract, in continuing with the proceedings without a legal representative at this stage (although this should be kept under review); 2) the allegations were perfectly comprehensible and did not need to be spelt out in better detail; 3) the police investigations had absolutely no overlap with the issues in the disciplinary proceedings and 4) the applicant had been perfectly capable of making points and responding to points in the course of the hearing and so could do so during the disciplinary hearing (although again the applicant's dyslexia should be kept under review).

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Neutral Citation Number: [2013] EWHC 3542 (QB)

Case No: 1HQ/13/0706

IN THE HIGH COURTS OF JUSTICE

QUEEN'S BENCH DIVISION

Strand

London

WC2A 2LL

Monday, 7th October 2013

BEFORE:

MR JUSTICE DINGEMANS

BETWEEN:

LLOYD-OWEN (Claimant)

- and –

SPIRE HEALTHCARE (Defendant)

MR GILES POWELL (instructed by Eastwoods) appeared on behalf of the Claimant

MR BEN COOPER (instructed by DAC Beachcrofts) appeared on behalf of the Defendant

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MR JUSTICE DINGEMANS:

1. This is the hearing of the Claimant's application for an interim injunction to restrain the Defendant from carrying out disciplinary proceedings, including a disciplinary hearing and the hearing is scheduled for Thursday, 10th October 2013. It is now Monday, 7th October at 3.50 pm.

1. The Claimant says that such a hearing would: (1) be in breach of her contract of employment, because she has been refused the right to legal representation; (2) she has been refused the provision of further information; (3) she has been told that she is the subject of a police investigation and that now makes it unfair to continue with the disciplinary proceedings; and finally (4) she has expert evidence on her competence to take part in the hearing and it would be unfair to permit the hearing to continue.

1. The Defendant says that the applications should be refused. They say there is no contractual or Article 6 right to legal representation. They say the Court should not micro-manage the disciplinary process and they also say that the Claimant has issued this application very late, given that we are now on Monday, 7th October, effectively ex-parte on notice. This is in circumstances where the Defendant had set out in its letter, dated 29th August 2013, that the hearing would take place on 10th October and what the hearing would be about.

1. The relevant background is that the Claimant is a consultant breast care nurse employed by the Defendant at hospitals in the West Midlands. She has a diploma in breast care, which was from 1995 and she has a BSc in cancer nursing in 2001. She worked for a consultant known as Ian Paterson and it appears that concerns arose in relation to Mr Paterson's care. The investigation was widened and has included the Claimant. I should just record that it appears that the Claimant herself had separate concerns about another person, but that is not an issue before me.

1. The contractual documents are set out in the bundle before me at page 420 and this is the disciplinary procedure and policy issued by the Defendant. That provides that, as far as representation is concerned, the employee has the right to be accompanied at each stage of the formal process, but employees have no automatic right to be accompanied to any investigation meeting. There is no right to legal representation. That relates to the investigation process and in fact the Claimant was accompanied at material parts of the investigation process, albeit there was considerable correspondence on that and at page 421 under the disciplinary process it is said that:

"The employee will be invited to a meeting at which they can be accompanied and state their case where they will be treated fairly and consistently. This will enable a decision about whether disciplinary action is appropriate and at what level." (Quote unchecked)

It is noted that the action by the employee - at page 422 in the boxes – is:

"To consider the allegations prepared for the hearing, asking for support where necessary, including advising the names of relevant witnesses and why they are relevant." (Quote unchecked)

At 424 the role of the companion is set out, which is that:

"Employees have the right to be accompanied to a disciplinary hearing by a fellow employee of Spire Healthcare, or a member of an appropriate professional body, which is defined to be a nursing professional body, which is a member of the clinical staff, representative from the Royal College of Nursing or a trade union official." (Quote unchecked)

It was noted that:

"The companion should support the employee, can participate in the meeting by making opening and closing statements and contribute to the meeting. They are not allowed to answer questions on the employee's behalf, although both may confer privately." (Quote unchecked)

There was reference also to some historic BUPA terms, which it appeared had previously governed the relationship between the Claimant and Defendant, but I do not take any particular account of those, because they make clear at page 4 of 43 that they are not contractual and will be reviewed from time to time and it appears that the relevant terms are those that I have read out.

1. In the light of that background, one comes to summarise briefly what has happened. The investigation has taken place over a number of meetings. There have been various delays in that process while the Claimant has insisted on her right to be accompanied and there have been attempts to delay the process while transcripts from investigations have been sought to be agreed. I have to say, reading through the correspondence -- and I hope this is not an unfair observation -- there seems to have been a considerable judicialisation of this investigatory process on the part of those instructed by the Claimant through the MDU.

1. Be all that as it may, a number of investigation reports were issued. The first one in March 2013 and then, after further matters were raised, a second one on 25th June 2013. Those are quite detailed and set out relevant alleged breaches and circumstance why it is then said the Claimant has acted in breach of obligations. But the Claimant, perfectly properly on the material before me, pressed for a statement of charges and that was produced in a detailed letter of 29th August 2013, which runs to eight pages. It is right to say that when one reads that in isolation, there is an element of putting in a considerable number of charges against the Claimant, some of which might be seen to be more serious than others and the description "kitchen sink" element was applied -- at least in discussions between counsel and me -- to that and I can understand that description of it. On the other hand, when read with the earlier investigation reports, it seems particulars have been given in relation to many of the detailed requests for further information about the allegations. I take, for example, paragraph 1(a), which is -- the overall allegation is:

"That you failed to work in line with your job description and did not ensure that all patients entering the service received safe and exemplary care with open access to a breast care specialist nurse at all times." (Quote unchecked)

Then specifically (a):

"A failure to care for all breast cancer patients." (Quote unchecked)

And then reference was made to what the Claimant had said, which is:

"That she only saw those with a malignant disease. That did not place similar focus on our benign patients, which contravenes your requirement to provide 'exemplary care for breast patients' ie: all patients. This breached best practice diagnostic guidelines for patients presenting with breast symptoms, 2010, from the Department of Health. This also contravened RCN clinical standards." (Quote unchecked)

There have been questions raised about that particular detail, because the Claimant's solicitors wrote on 17th September 2013 complaining of a lack of specificity of the charges, but if one reads this document with the earlier documents of March and June, one can see the particulars which are complained of. Whether they are justifiably complained of is for the disciplinary proceedings and not for me.

1. The Claimant also asked and repeated her request for legal representation. On 23rd September the Defendant replied saying no legal representation. They were concerned about a judicialisation of the process, but they say they would look at any further request for information. On 25th September the Claimant's solicitors then did provide a request for further information. I have to say, one only needs to read that document to see some of the frustrations expressed by the Defendants. The approach seems to be to ask every conceivable question which could be raised, without any real regard to whether that was going to take either the Claimant or the Defendant any further forward. That said, I entirely accept within that there were perfectly proper questions and some of those were answered by the Defendant on 30th September 2013. That was the response that prompted this application.

1. So far as the legal principles governing my approach are concerned, those can be stated shortly. There is a duty on the Defendant to make reasonable adjustments to take account of the Claimant's disabilities and those disabilities are, effectively, her dyslexia, and I have had a helpful report from a psychologist, which sets out the details of her dyslexia and how that is engaged. Picking it up at page 461 of the bundle:

"It was noted that the Claimant had difficulties with speed of reading; ability to understand information quickly when reading; a difficulty when she was on the spot; a difficulty with spelling; a difficulty with working memory; problems with word finding when she is under pressure of time, and indeed, feelings of lack of self-esteem, because of her dyslexia." (Quote unchecked)

On the other hand it is fair to report, as I have said: the Claimant has had a successful career to date and obtained a degree in cancer nursing.

1. The report by Linda Hine, the educational psychologist, was specifically requested to establish:

"Whether or not the [Claimant] could undertake the pressures and workload of representing or assisting with representation at a lengthy disciplinary hearing." (Quote unchecked)

I am not sure, and Mr Powell in his submissions -- for which I am very grateful and were very helpful -- was unable really to take me very much further forward ,as to why the test applied by Ms Hine had been expressed in those terms in circumstances where it was clear that the Claimant was going to be assisted by having a companion with her and would not be representing herself or, I suppose, assisting with representing herself. She would be the person against whom the disciplinary process was taking place. The response to that report, on the Defendant's part, is that the matter will be kept under review and that seems to me to be entirely appropriate.

1. Continuing on with the law and turning to authorities and reasonable adjustment, the next authority was SS v Knowsley [2006] EWHC 26 (Admin) which is a decision of Toulson J. in the Administrative Court on 19th January 2006. This was an application for judicial review in respect of a refusal to permit legal representation at hearings against doctors who were subject to proceedings. There are a number of features which are important to note in relation to that. case First of all, the case was subject to regulations made pursuant to the National Health Service Act and Toulson J pointed out at paragraph 78 that:

"...the regulations were not mere employment procedures".

He said that would be to downgrade their significance and importance. Toulson J stated that they served the important public purpose of keeping inefficient and unsuitable people from performing as doctors in the NHS.

1. Mr Powell says that effectively the same principles should apply to the Claimant's case, because she is a consultant cancer care nurse. It is obviously right that, so far as the Claimant is concerned, the seriousness of what is at stake -- and that has been emphasised on behalf of the Claimant a number of times this afternoon -- is fully borne in mind in the disciplinary proceedings. But that approach does seem to me to elevate Knowsley to an authority of general application when it was specifically decided by reference to the regulations. In any event, even if assuming that Knowsley was of general application, as to legal representation what was said in that case at paragraph 101 was that:

"It may be that in many cases legal representation would be unnecessary, but the question in each case must be whether the doctor can reasonably be expected to represent himself or whether legal representation is necessary in order to enable him to be able properly to present his case. I do not see that this can be a matter of presumption but must depend on the circumstances, including, particularly, the complexity of the allegations and the evidence."

1. And in this case it is perfectly clear from all the material before me and from the submissions made by Mr Cooper on behalf of the Defendant -- and I am grateful for his submissions -- that if the proceedings really do, at the end of the day, require legal representation, because of any particular feature of the Claimant's condition which manifests itself, that will be always kept under consideration. But the Defendant submits that the time has not yet come and I have to say that I agree with the Defendant in relation to that point. It seems to me that it is perfectly possible for the Claimant to have a fair disciplinary hearing on the material which is before me without legal representation. She can be represented, as she has been on the transcripts that have taken place, by someone from the MDU and I have read through the transcripts -- I confess, not all of the transcripts, but I hope a fair representation -- which show that the Claimant has been perfectly capable of making points and responding to points in the course of the hearing. So for those reasons Knowsley does not seem to me to be an answer to this claim.

1. I should just record the decision of [Christou v London Borough of Haringey ]()[2013] EWCA Civ 178 [2013] ICR 1007, establishes the proposition that a disciplinary employment hearing is neither an adjudication nor a judicial determination for the purposes of Article 6. I think Mr Powell was not prepared to gainsay that at this stage, although he made it clear that he reserved his right if there was a full trial.

The only other authority to which I should refer is this, and that is Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789 [2010] ICR 101. At paragraph 22, Lady Justice Smith specifically approved a judgment given by Penry-Davis J that: "...the High Court should not become involved in the micro-management of disciplinary proceedings." It has been said in a subsequent case that in the absence of a clear breach of contractual obligations, the disciplinary processes should not be frustrated. I am not sure I need to comment on that further refinement of the principle, but plainly if there is a clear breach of contractual obligations the Court will very often be the perfect place to put that right. But in this case, it does seem to me that the complaints made by the Claimant have the feel of micro-management about them.

1. So far as the four specific complaints are concerned, I have already really addressed the issue of legal representation, but it seems to me that there is no unfairness or breach of contract, or arguable breach of contract, in continuing with the proceedings without a legal representative at this stage. Whether matters change is a matter which obviously the Defendant and the Claimant will have to keep under careful review.

1. The second complaint is that there is an entitlement to have the allegations spelt out in better detail. I have to say this has all the hallmarks of micro-management. The allegations have been sufficiently spelt out, albeit with an element of the kitchen sink, and might be thought to have been overly long, but when read with the investigation reports the allegations are perfectly comprehensible.

1. As far as the police investigation is concerned that arose recently, and I am told and entirely accept that the Claimant is to be interviewed on 8th October 2013. However, that police investigation relates, so far as one can see, at page 472, to criminal offences that are being investigated: a s.18 assault; grievous bodily harm with intent; fraud by false representation; obtaining money by deception and a conspiracy to commit these offences with others. True it is, the police say, that is a complex, lengthy and ongoing investigation and true it is that it is against the background of her practice as a nurse. But it seems to me to have absolutely no overlap with the allegations which have been set out in detail in the letter of 29th August and the further investigation reports. It was difficult to identify any prejudice that the Claimant might suffer from permitting the disciplinary process to continue. The best that was suggested was that the Claimant's current intention on legal advice is to make a prepared statement to the police. The Claimant is perfectly entitled to take what course she wants in that, but a prepared statement in relation to s.18 matters, fraud by false representation and a conspiracy to commit those offences, is not going to undermine the disciplinary proceedings and it seems to me impossible to work out how the disciplinary proceedings are going to evidence any s.18 assaults, fraud by false representations or a conspiracy to commit these offences and so I refuse to order an injunction on that basis.

1. The final point made, again, was in relation to the expert evidence, which I have addressed in relation to the issue of legal representation.

1. The duty on the Defendant is to provide a fair hearing of these disciplinary processes to the Claimant and there is nothing in the material before me to suggest that that will not happen. If and when that does happen then there may be other remedies, but for those reasons I refuse this application for an injunction.