News & Legal Updates
Sign up to news & legal updates
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
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2011
Members of the Law Society of Scotland. Authorised to conduct Investment Business under the Financial Services & Markets Act 2000 by the Financial Services Authority.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.Back to News & Legal updates