Ophthalmic Surgeon Successful in Unfair Dismissal Claim Against Trust

Simon Eastwood, who instructed Ben Collins QC, successfully represented a Consultant Ophthalmic Surgeon in a claim for unfair dismissal and breach of contract, after he was dismissed by Heart of England Foundation Trust (now part of University Hospitals Birmingham Foundation Trust) in June 2017.

The dismissal had been based on two incidents in 2016.  The first incident arose when the surgeon had a patient booked in for urgent surgery which had to be performed that day, or the patient was at significant risk of loss of vision in that eye.  When a nurse refused to assist with the operation and the surgeon was told that no other trained clinician was available to assist, the surgeon was left with the choice between cancelling the surgery, which would be likely to lead to loss of sight; or seeking assistance elsewhere.  He therefore asked a manager, who had no clinical experience, to assist.  The surgery was completed successfully, but in enlisting the assistance of the manager, the surgeon was held to have put the patient at avoidable risk.  In the second incident, the surgeon was said to have left his list in the hands of a senior trainee while he attended a meeting, without permission. Again, this was said to have put patients at unnecessary risk, notwithstanding the fact that the surgeon’s list had been completed by the senior trainee without incident.

After the surgeon was dismissed, the Trust referred the case to the General Medical Council, which closed its investigation with no further action after an independent expert advised that, overall, the surgeon’s actions had fallen below, but not far below, the expected standard.

Delivering judgment earlier this month, Employment Judge Broughton concluded that the Trust’s then Medical Director had shown “a strong suspicion of bias” against the surgeon throughout the course of the investigation; that the Trust had in numerous respects failed to follow due process; that the Medical Director had been “deliberately misleading” when referring the matter to the GMC; and that in respect of the second incident, the investigators knew, or ought to have known, that the allegation against the surgeon was false, as he had in fact been permitted to attend the meeting.  In summary, the judge concluded: “No reasonable employer would have viewed these allegations, when appropriately considering all the circumstances, as gross misconduct”.  Whilst concluding that the surgeon had contributed to the decision to dismiss him, the judge concluded that the dismissal had been unfair.  He also concluded that in dismissing the surgeon with immediate effect following its finding of gross misconduct, the Trust was guilty of breach of contract, meaning the surgeon would be entitled to recover the pay due to him in keeping with his notice period.

For a copy of the full judgment, click here.  For press reaction to the decision, click here. The Health Service Journal’s commentary on the case can be accessed by clicking here.