NI Court of Appeal rules that a Polish GP’s claims of discrimination and unfair dismissal are “manifestly ill-founded and must fail"

28 January 2016

The NI Court of Appeal rules that a Polish GP’s claims of discrimination and unfair dismissal are “manifestly ill-founded and must fail.” It further commented that it was regrettable that the appellant had “chosen to invest so much wasted time and effort in pursuing a course which involved unfairly blaming many individuals…for her misfortunes” and hoped that she would “turn her focus inwards so as to seek to recognise and remedy the shortcomings that have made her unsuited for her employment.” [2016] NICA 1

NI Court of Appeal rules that a Polish GP’s claims of discrimination and unfair dismissal are “manifestly ill-founded and must fail"

The Appellant in this case, was a medical doctor from Poland who was employed as a GP by Southern Health and Social Care Trust in the Out of Hours service.

The case was heard before the Industrial Tribunal in December 2014 and the Appellant’s claims for discrimination on the grounds of race and sex, breach of contract, unlawful deduction from wages, unfair dismissal and detriment and dismissal on the grounds of having made an alleged protected disclosure were dismissed in their entirety.  The Appellant then appealed to the Court of Appeal.

During the original hearing, five incidents of serious concern were recounted to the Tribunal:

1.            Tramadol self-administration – the Appellant admitted that in July 2006 she had self-administered an injection of Tramadol when working on her own, stating that her reason for doing so was that she was suffering from a severe headache.

This was obviously of concern to the Respondent primarily because the Appellant had self-injected a drug which could have impaired her ability to do her job, and further because this was a prescription only drug for which the Appellant clearly did not have a prescription.  The Appellant indicated that this was common practice in Poland.

2.            Death Certification procedures – in December 2007 the Appellant breached death confirmation procedures.  This led to queries from the Coroner and the potential that a body may have to be exhumed.  The Appellant did not dispute that this incident had occurred, but sought to argue that the problem was in relation to a breach of policies and procedure, not her performance and therefore should not have been taken into account.

3.            Confidentiality – Dr Carlisle, Clinical Lead in the Out of Hours service, received a complaint in April 2008 that the Appellant had spoken to the mother of an adult patient without his permission.  This allegation was supported by telephone recordings of the conversation in question.

Following this incident, it was thought that mentoring should be arranged for the Appellant, however, before concrete arrangements could be put in place, two more serious incidents occurred in July 2008.

4.            Patient AB – the Trust received a letter from the family of an elderly and terminally ill patient.  This letter alleged that the Appellant had refused, three times in one night, to carry out a home visit to AB, whose family were concerned that her pain relief was inadequate.  It was alleged that the Appellant had suggested that the family take AB to the hospital or wait until the next morning to take her to the GP.  AB died the following day.

The Appellant did not dispute that these events had took place, however, she argued that it was wrong that she had been dismissed for this, and rather should have been given retraining and support.

5.            Patient GK – The Appellant allegedly gave an inappropriate dosage of a particular drug to GK, who then had to be taken to casualty.  The Consultant at casualty indicated that that GK would have been at risk of death if she had had a respiratory attack.

The Appellant did not dispute that she had given an overdose to the patient, but did dispute that the patient was at risk of death.

A disciplinary process was commenced and the Appellant was dismissed for gross misconduct in relation to the AB incident.  Importantly, the panel had also taken into account the other four incidents in reaching the decision that dismissal was the appropriate sanction.

The Appellant appealed this decision, saying that she accepted that it “…would have been good to visit AB, that she could have done things better, and that she needed further training.”

The Appeal Panel upheld the finding of gross misconduct, but considered that, since there had been no previous formal disciplinary action, the sanction of dismissal should be reduced to a final written warning and further found that the other incidents should not have been taken into account by the disciplinary panel as they did not form part of the single disciplinary charge the Panel were engaged to deal with.  It was also recommended that the Appellant undertake various periods of retraining.

The Appellant was required to undergo GMC assessment of her fitness to practice, which found that her “…levels of performance and competence were so low her response to efforts at remediation so poor and her insight into her learning needs and her ability to address them so limited that in our view to hope for successful remediation would be unrealistic…” and consequently 19 restrictions were imposed on her practice for a period of 2 years.

In light of these findings, the Appellant was invited to discuss the implications this may have for her employment, and following same, the Trust determined that it had no option but to terminate the appellant’s contract of employment as the GMC conditions would make it unlawful to employ her to work as a GP in the Out of Hours service.  The Appellant unsuccessfully appealed the decision to dismiss her.

In a judgment delivered on 7th January 2016 the Court of Appeal rejected the Appellant’s appeal in its entirety, commenting that the court had “…carefully examined the Tribunal’s conclusions of fact and finds no basis upon which it was not entirely entitled to reach on a proper appreciation of the law and the evidence which it received.”  It further commented that the Tribunal’s findings of fact were “entirely justified” and that its process of reasoning could not be faulted.  This alone, in the Court of Appeal’s view was sufficient to properly dispose of the appeal, however, given the importance that had been placed by the Appellant on various aspects of her submissions, the Court of Appeal went on to consider these points in more detail, namely that; the Appellant had alleged the Tribunal had misunderstood the status of her medical registration.  The Court of Appeal found there was “no substance” to this point and further that, in its original Decision, the Tribunal had clearly demonstrated an understanding of the position.

Maxine Orr is a Partner in Worthingtons Commercial Solicitors in Belfast specialising in employment law.

 

Stadnick-Borowiec v Southern Health and Social Care Trust [2016] NICA 1 (7 January 2016)

Maxine Orr

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