30th July 2014

EAT Upholds Unfair Dismissal of Doctor Convicted of Drink Driving

A doctor who was employed by NHS Fife Health Board (“NHS”) has had a decision that he was unfairly dismissed upheld following a hearing before the Employment Appeal Tribunal in Edinburgh. Dr Stockman was convicted of driving while four times above the legal alcohol limit.  As a result, his registration with the General Medical Council (“GMC”) was subject to an interim suspension of 18 months.  He was signed off as unfit for work while he attended an alcohol treatment clinic.

NHS had a policy which stated that if an employee became ineligible for registration, that employee could no longer be employed in a post which required registration.  The policy expected the employer to deal with such a situation under their capability procedure.  The NHS capability procedure included loss of registration as one of the matters to be dealt with under that policy.  A new capability policy had been drafted some months before the dismissal, however, this policy had not yet been implemented.  Under the terms of the “new” policy, loss of registration was no longer a matter to be dealt with under the capability heading.

NHS decided that as GMC registration was necessary but not available, unless alternative employment could be arranged, dismissal would result (under the “old” capability procedure).  Despite leading evidence that he was likely to respond to the treatment which he was receiving and that the suspension of his registration was likely to be revoked, Dr Stockman’s employment was terminated just 6 weeks after the imposition of the GMC interim suspension.

Dr Stockman argued that NHS ought to have kept his job open while he received treatment for his alcohol issues.  NHS argued that it was unreasonable to expect them to pay for two consultants while Dr Stockman remained suspended.  The employment tribunal preferred the former argument and found the dismissal to be unfair.  The EAT agreed with the original decision.

Given the increasing number of employees who require to hold a professional registration to carry out their job, this decision is of potential significance.  The EAT agreed with the employment tribunal’s criticisms of the employer in applying their capability policy in such a manner as to make dismissal inevitable.    The NHS had acted unreasonably in dismissing the doctor without considering the full circumstances, including up to date information about his medical treatment and the likely duration of the GMC suspension.

Employers faced with a situation where the professional registration of one of their employees has been suspended, would do well to carry out a full investigation of the circumstances of the case, rather than focusing solely on the loss of registration.    

Jack Boyle 
Senior Solicitor – Employment Law
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