Appeal No. UKEAT/0103/08/ZT
UKEAT/0104/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 June 2008
	                     Judgment handed down on 22 July 2008

Before
THE HONOURABLE MR JUSTICE NELSON
MR A HARRIS
MR S YEBOAH

DR S VARMA	APPELLANT

NORTH CHESHIRE HOSPITAL NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR O HYAMS
(of Counsel)
Instructed by:
Messrs John Ford Solicitors
3a Blackstock Road
London N4 2JF	
For the Respondent	MR R BRADLEY
(of Counsel)
Instructed by:
Messrs Mace & Jones solicitors
Pall Mall Court
61-67 King Street
Manchester M2 4PD	

SUMMARY

UNFAIR DISMISSAL
Fundamental breach of employment contract alleged to entitle the Appellant, a trainee doctor, to repudiate his contract with the NHS Trust. Tribunal is alleged to have failed to take into account allegations of bad faith made against the employer in its determination to dismiss the Appellant by any means and its choice of the wrong disciplinary procedure. Appeal dismissed. The Tribunal considered all the matters properly and the appeal had no merit.

THE HONOURABLE MR JUSTICE NELSON

1.	This is an appeal against the decision of the Liverpool Employment Tribunal promulgated on 22 June 2007 rejecting the Appellant’s claim of unfair dismissal.  The matter had first come before the Liverpool Employment Tribunal in June 2004 when the Appellant’s claims of constructive dismissal, race discrimination, sex discrimination and public interest disclosure were dismissed.  The Appellant successfully appealed that decision and the EAT ordered that the claim of constructive dismissal should be remitted for re-hearing by a fresh Employment Tribunal.  The appeals relating to the dismissal of race discrimination, sex discrimination and public interest disclosure were withdrawn.

2.	The rehearing which is now appealed against took place before a different constitution of the Liverpool Employment Tribunal on 11, 12 and 13 June 2007. At a preliminary hearing of the appeal on 22 February 2008 a full hearing in relation to grounds 1, 2, 6 and 7 of the grounds of appeal was ordered and grounds 3, 4 and 5 were dismissed.  We have had the benefit of detailed written submissions and oral submissions from Oliver Hyams on behalf of the Appellant and Richard Bradley on behalf of the Respondent.
The facts
3.	Dr Varma was employed by the North Cheshire Hospitals NHS Trust from July 2001 as a pre-registration house officer.  The post was for a year during which he would be trained and his fitness for practice assessed.  Within a few months there were concerns within the Trust about Dr Varma.  He made certain claims which seemed to be fantastic, for example that he had participated in certain television programmes in circumstances that appeared most unlikely, and made an allegation of bribery against an official of his former university at Sheffield.  Emails were received from a “Matthew Jackson” which it appeared had been sent by Dr Varma himself, and which, the Employment Tribunal found, made assertions that cast doubt on Dr Varma’s judgment.  It was conceded at the hearing before the Employment Tribunal that the allegations raised issues which were bound to concern the Trust and would warrant disciplinary procedures being invoked.

4.	In March 2002 Dr Varma took an overdose.  He was declared fit to return to work on 7 May 2002 but although on full pay, was not permitted by the Trust to return to his duties.  After his overdose there were concerns about his mental state.  The Tribunal found that the Trust were anxious to avoid a suspension and the possible adverse effect that that might have on Dr Varma’s career.  To that extent they were attempting to assist him.

5.	On 12 April 2002 Dr McNamara, consultant in occupational health, reported on having seen Dr Varma at his clinic.  He described him as “a rather bizarre character whose maturation appears to have ceased in his early teens”.  He noted that one of his supervising consultants was most anxious about him returning to the work place and referred to the Appellant claiming to have been considered for Big Brother and Blind Date, that he had saved people’s lives by pulling them from a burning car and that he had been offered a Rolls Royce or Bentley car to keep people quiet about issues at the Sheffield Medical School. “They feel that he is very untrustworthy, especially if he is telling lies about his various exploits which they are convinced he is.” Dr McNamara stated that he was reasonably sure that the Medical Director, then Dr Murphy, and supervising consultants would not be at all happy to take Dr Varma back into the fold or sign him up for his first pre-registration post. 

6.	In a file note dated 4 September 2002, Dr Rose, the new Medical Director noted that Mr Johnston, a consultant surgeon and Chairman of the Medical Staff Committee at Halton Hospital “thinks we ought to go through formal disciplinary process, with legal advice, and sack him”.

7.	At a meeting on 29 October 2002, enquiring into the personal conduct and attitude of Dr Varma, Dr Rose said that he wished an outside body to assess Dr Varma’s fitness to practise so that it could then decide whether or not Dr Varma could continue his medical training.  He stated he had no information regarding Dr Varma’s background in Sheffield where he had been trained, only rumour, that such matters should be clarified and Dr Varma have the opportunity of returning to his training.

8.	In November 2002 a letter was circulated to employees of the Trust containing information which it appeared could only have come from Dr Varma, and which, in the Trust’s eyes, indicated a serious lack of judgment on his part. Accordingly he was formally suspended and informed that disciplinary proceedings would be taken.  The bulk of the allegations made against him did not relate directly to his clinical competence and, accordingly, as the Tribunal found, the Trust adopted the disciplinary procedure that was relevant for issues of personal misconduct.  

9.	In December 2002 Dr Rose referred Dr Varma to the General Medical Council (GMC).  At that time the disciplinary hearing had not yet taken place and the issues had not, by then, been fully addressed by Dr Varma.  Dr Rose did not inform Dr Varma of the referral to the GMC until April 2004.

10.	The disciplinary hearing was due to take place in March 2003 but was delayed until 15 May 2003.  Between those dates Dr Varma received a number of documents and he told the Employment Tribunal the inference he drew from those documents was that he would not receive a fair hearing on 15 May, and that even if he avoided dismissal, those he would subsequently work with would see to it that he was dismissed in any event.  Accordingly, although he attended the disciplinary meeting on 15 May, he handed in a letter of resignation before it could commence. 

11.	We have considered this appeal upon the basis of the information before the Employment Tribunal at the time that it heard the matter. We have therefore ignored events which have transpired since that time.

The Grounds of Appeal.
12.	The grounds in respect of which the Appellant was given leave to appeal are as follows:-
(1) The Tribunal failed to deal properly with the Appellant’s claim that the Respondent had acted in good faith.
(2) This ground has been amended and now asserts that the Tribunal wrongly judged the severity of the failure by the Respondent to follow the correct disciplinary procedure. They wrongly took into account the manner in which the Appellant responded or could have responded to the adoption of the wrong procedure, and wrongly categorised the severity of this incorrect choice of procedure as mere ‘mistreatment’.
(6) The Tribunal’s finding that the Appellant did not know that his suspension was unlawful was irrational
(7) The Tribunal found that the reasons why the Appellant had in fact resigned were firstly because he became aware of the low esteem in which he was held by his colleagues, and secondly that he considered that the very likely outcome of the disciplinary hearing was his fair dismissal. In reaching those conclusions the Tribunal wrongly failed to appreciate that the ‘low esteem’ could not be properly separated from the results of that low esteem namely the apparent determination on the part of his colleagues to ensure that he was dismissed and the bad faith which the Respondent exhibited. The Tribunal prejudged whether the dismissal was fair, failing to take into account the fact that the wrong disciplinary procedure had been used and the possibility of bad faith on the part of the Appellant’s accusers. The Tribunal should have applied an objective test as to whether there was a breach of the implied term of trust and confidence and whether the Appellant resigned in response to that breach rather than asking whether his stated reasons were as he asserted them to be. As a consequence of these errors the Tribunal failed to appreciate that the reasons that they had found for the Appellant’s resignation were matters in respect of which the Respondent could in any event properly be criticised.

13.	We refer in this judgment to the numbering as above which was adopted by the parties during the course of their submissions.

The Employment Tribunal’s decision.
14.	The Claimant asserted that he had resigned his employment with the Trust as a result of their fundamental breach of contract which constituted, in the circumstances, an unfair dismissal. The Tribunal noted that under s95 of the Employment Rights Act 1996 an employee is entitled to terminate his contract without notice if the conduct by his employer amounted to a fundamental breach of contract. Dr Varma relied upon a number of acts of mistreatment as breaches of contract in themselves but he said that the reason for his resignation was that the Respondents had breached the implied term within his contract that the parties will not act in such a way as to destroy or seriously undermine the relationship of trust and confidence between them.

15.	In considering these matters the Tribunal referred to eight specific areas which Mr Hyams had identified as the mistreatment relied upon. The Tribunal had the benefit of Mr Hyams’ skeleton argument in which the eight headings were set out and developed, his closing submissions in writing and his oral submissions. We have had the benefit of copies of the written opening skeleton and written closing submissions that were before the Tribunal.

16.	Under the heading Suspension in breach of contract the Tribunal found that Dr Varma’s contract provided that the Dean would be consulted before he was suspended but that it appeared likely that no such consultation had taken place. As, however, the Tribunal found that Dr Varma had told them that as at the date he resigned it was his understanding that such consultation had taken place, any such failure, whether or not it had occurred, could not have been a cause of his decision to resign. 

17.	Under the heading Delay before suspension, the Tribunal found that the matters which had come to light by March 2002 would have merited Dr Varma’s suspension, but he was not in fact suspended until November.  It was not surprising, the Tribunal held, that the Trust did not suspend him in March, when he had taken an overdose and was likely to be in a delicate mental state. The Tribunal specifically accepted in paragraph 21 of its decision that the Trust were attempting to assist Dr Varma by being anxious to avoid a suspension and the possible adverse effect it might have on his career. They did find that several months of delay occurred, in part due to Dr Varma himself, but also through a lack of urgency on the part of the Trust. It was only when a letter was circulated to employees of the Trust in November which appeared to have emanated from Dr Varma and which, in the Trust’s eyes, indicated a serious lack of judgment on his part, that he was in fact suspended and a disciplinary process instigated. The Tribunal concluded that an element of criticism could be levelled against the Trust for the delays. They owed it to Dr Varma to deal with the matter more expeditiously than they actually did.

18.	Under the heading ‘Fishing’ for evidence the Tribunal found that the Dean had asked Dr Varma for his consent for the Dean to approach Sheffield University to raise certain issues with them.  Dr Varma’s refusal of that request became one of the allegations against him in the disciplinary process.  The Tribunal found that his refusal to give consent was an issue which the Trust was entitled to address in the disciplinary process.  It was a matter which Dr Varma would have been at liberty to contend was not a relevant issue at the disciplinary hearing but, the Tribunal concluded they did not consider that the Trust’s conduct amounted to mistreatment of Dr Varma.
19.	Under the heading Reliance on a mass of detail the Tribunal saw no reason to criticise the Trust for the number or gravity of the matters alleged against Dr Varma.  A number of them were relatively unimportant but there was no reason why they should not have been considered.

20.	Under the heading Adopting an incorrect procedure the Tribunal found that the bulk of the allegations made against Dr Varma were clearly of personal misconduct, but equally there were a number that raised issues of professional misconduct.  Since that was the case it was incumbent upon the Trust to adopt the procedure that related to professional misconduct, which might afford Dr Varma greater protection.  Their failure to do so amounted to mistreatment of him.  In gauging the severity of that mistreatment the Trust took into account the fact that the within the relevant procedure there was a process whereby the decision as to whether to treat the matter as professional or personal misconduct could be challenged.  They also took into account the fact that Dr Varma told them in his evidence that this was an issue that he intended to raise at the disciplinary meeting on 15 May had he not resigned.

21.	The Tribunal therefore concluded that as there was a relatively straightforward process whereby the adoption of the ‘wrong’ procedure could be addressed and potentially rectified, then until that course was taken the mistreatment suffered by Dr Varma was of a less serious nature than if the choice of procedure had been determined irrevocably.

22.	Under the heading Referral to the GMC before having a response in a formal setting the Tribunal found that reference to the GMC was an option where a disciplinary investigation had already taken place but that did not mean that no reference could be made under any other circumstances.  Nevertheless they believed it would have been preferable for the Trust to have fully canvassed the issues with Dr Varma before the reference was made, and to that extent they found that he was reasonably entitled to regard that as mistreatment.

23.	Under the heading Reference to the GMC without notification to Dr Varma the Tribunal found that that was in contravention of a Government circular and amounted to mistreatment but that as a reference was certainly something that had been canvassed in advance it should not have come as a surprise to him.  However they considered that the Trust was open to criticism for referring the matter to the GMC without informing Dr Varma.

24.	Under the heading Inevitability of dismissal the Tribunal considered the documents which Dr Varma had received in advance of the hearing on 15 May which led him to believe that he would not get a fair hearing.  One was a memorandum from the Trust’s solicitors which Dr Varma told the Tribunal demonstrated that his fate was sealed.  The Tribunal found that the document canvassed the situation, should the decision to dismiss be taken, but did not approach the issue on the basis that dismissal would inevitably be the result and did not see how Dr Varma could so interpret it.  They also considered a memorandum from Dr Rose addressing Dr Varma’s possible dismissal; however, the Tribunal said Dr Rose was simply a witness who would be appearing at the disciplinary hearing.  The panel for such hearing was on its face wholly independent and there were no documents, and no information, that might reasonably have led Dr Varma to conclude that he would receive anything other than a fair hearing.

25.	The Tribunal also considered Dr Varma’s evidence that the documents he saw made it clear that he would be hounded out of his post even if he successfully retained his employment. The Tribunal stated that they failed to see how he could reasonably reach that conclusion. Dr Murphy, Dr Rose’s predecessor as Medical Director, had expressed the view in a report from April 2002 that it was inappropriate for him to return.  That, the Tribunal considered was hardly surprising at that time when the matters of concern had not been resolved and, where it appeared to have been conceded on behalf of Dr Varma that it would have been appropriate for him to have been suspended at that time.

26.	The Tribunal considered the note of a conversation between Dr Rose and Mr Johnston in which Mr Johnston expressed the view that he felt that Dr Varma was someone who should not be employed by the Trust.  Mr Johnston was someone with whom Dr Varma would have to have dealings if he remained an employee of the Trust, but the view was one which Mr Johnston was perfectly entitled to hold and express.  There was no suggestion that he would have expected it to have been communicated to Dr Varma.

27.	The Tribunal concluded that Dr Varma would have to persuade them that a reasonable interpretation of the documents was that various employees of the Trust with whom he would have to work were going, by improper and unprofessional means, to see that his employment would terminate.  The Tribunal concluded however that they did not believe that any reasonable person would come to that conclusion from those documents.

28.	The overall conclusions of the Tribunal are set out in paragraphs 43 and 44 of their decision. They had found that the Trust had mistreated Dr Varma in certain respects and they went on to consider whether those matters might amount to a fundamental breach of the implied term relating to trust and confidence. They concluded that they did not. They determined that the complaints made by Dr Varma that he appeared to be claiming had most influenced his decision to resign were without foundation. Their final conclusion was as follows:-
“For the sake of completeness, we did not in any event believe that the matters alleged by Dr Varma were the ones that actually led to his resignation. We considered that resignation had been a consequence of one or both of two matters, namely the fact that he had become aware, due to the disclosure of the documents in or about April 2003, of the low esteem in which he was held by his colleagues and secondly the fact that he did not wish to attend the disciplinary hearing given the very likely outcome which was his (fair) dismissal.”

29.	Dr Varma’s resignation was not therefore, the Tribunal found, a consequence of a fundamental breach of contract on the part of the Trust.
The Submissions.
30.	Ground 1. The Tribunal failed to deal with the Appellant’s allegation that the Respondent had acted in bad faith, in spite of the fact that that allegation lay at the centre of his case.  They did not refer to the words ‘bad faith’ and only dealt with the issue in a tangential way. They limited themselves to the summary of the allegations in the Appellant’s skeleton when the allegations were much wider than that and set out in detail in the closing submissions. The only part where they dealt directly with the allegations of bad faith was under the heading Inevitability of dismissal which was not as wide as the assertion of bad faith. If they considered only the skeleton, as opposed to the closing submissions and the oral submissions they erred in law. Their reasoning demonstrates that this is so.

31.	Dr Murphy said that he was acting in the best interests of the Claimant, but his letter of 10 July 2002 to the National Clinical Assessment Authority acknowledged it was not in the Claimant’s interest to be left in limbo, and his acknowledgement in cross-examination that Dr McNamara’s letter of 12 April 2002 accurately stated the position when it said that Dr Murphy and the supervising consultants would not be at all happy to take Dr Varma back into the fold or sign him up for his pre-registration post.  This, Mr Hyams submitted, showed bad faith as asserted in para 35.4 of the closing submissions before the Tribunal.

32.	Mr Bradley on behalf of the Respondent submitted that the Employment Tribunal dealt with each of the matters raised individually and with the specific allegation of bad faith in relation to Mr Johnston’s memo.  There was no basis in any of the individual criticisms which were now given the label of bad faith, and the Tribunal dealt with each of these entirely properly. As to 35.4 the Tribunal found as a fact that the Trust was attempting to assist Dr Varma and it should be noted that Dr McNamara’s letter was written whilst the Appellant was in fact ill.  It was his possible mental illness which was being discussed and Dr Murphy’s evidence that he was keen not to suspend Dr Varma if his problems could be dealt with by way of treatment was clearly accepted by the Tribunal. None of these allegations could conceivably be bad faith. At worst they were failures of procedure and the finding at paragraph 21 of the decision is a finding of good faith so that the question of bad faith simply cannot arise.

33.	Mr Hyams submitted that the manner in which the Tribunal dealt with the allegation concerning Mr Johnston at paragraph 35.5 of the closing submissions demonstrates the narrow and inappropriate way in which they dealt with the assertions of bad faith generally.  Here as elsewhere they limited their consideration of bad faith to pre-determination and simply the interpretation of the documents instead of looking at the rest of the evidence, the submissions and the matter in the round.

34.	Mr Johnston was the Chairman of the Medical Staff Committee and was therefore in an influential position. His view was not that the Trust should go through the procedure and consider whether to sack Dr Varma but, simply to sack him. Mr Hyams said that it was inevitable that the management would have a case which it had been decided to take disciplinary proceedings but that did not make Mr Johnston’s statement appropriate nor Dr Rose’s recommendation of dismissal to the independent panel. In fact his letter of 29 May 2003 stated that had the disciplinary hearing gone ahead, which it had not, a recommendation was to have been made at the hearing that his employment should be terminated. Mr Johnston’s attitude, as encapsulated in ‘Jim thinks we ought to go through formal disciplinary process with legal advice and sack him’, together with Dr Rose’s proposed recommendation to the panel shows that there was evidence of determination to get rid of the Appellant by fair means or foul, Mr Hyams submitted. By this he said he meant there was a preparedness to get rid of him by unfair means as Mr Johnston’s note exemplified.

35.	Mr Hyams accepted during the course of argument that it cannot be said that a determination to get rid of someone, even unfairly, is a fundamental breach per se because of the existence of a claim for unfair dismissal if the dismissal is unfair. He agreed that if a manager had a genuinely held firm view that an employee had behaved in such a manner that he should be dismissed and followed the proper process, it could not be said to be bad faith, but nevertheless these are factors which must be taken into account together with all the other factors alleged against the Respondent. 

36.	The Respondent submitted that the reference to ‘sack him’ in Dr Rose’s file note of what Mr Johnston told him does not indicate bad faith. It refers to what Mr Johnston believed the result of disciplinary proceedings would be given the Appellant’s conduct. Mr Johnston was not making his remark to the Appellant himself and would never have expected it to be revealed to him. As the Tribunal found, Mr Johnston was entitled to his opinion. It was one that he formed upon the merits of the case, and in view of those merits was not unreasonably formed. The concession recorded in paragraph 5 of the Tribunal decision, namely that the issues raised by the allegations against Dr Varma were bound to concern the Trust and would warrant disciplinary procedures being invoked, demonstrates this.
37.	Mr Johnston was not part of the disciplinary process and not part of the decision making process of the panel which was independent.

38.	Paragraph 35.6 of the closing submissions is not a separate allegation of bad faith but an emphasis of the seriousness of the wrongful conduct alleged against the employer in 35.5 with which we have already dealt.

39.	The allegation in 35.7 that the Trust accumulated a mass of trivial detail was, Mr Hyams submitted, another example of bad faith. The Respondent submitted that the Tribunal rightly made no criticism of the Trust for the number or gravity of the matters which they alleged against Dr Varma.

40.	Mr Hyams on behalf of the Appellant submitted that the use of the personal misconduct route rather than the professional misconduct route, by levelling against Dr Varma many allegations of trivial personal misconduct (paragraph 35.8 closing submissions) was another example of bad faith. This was particularly so, given that the procedural safeguards in the professional misconduct procedure were greater than those in the personal conduct procedure and that if the Appellant was dismissed he would be highly unlikely to obtain further employment as a doctor because of the monopoly nature of the NHS.

41.	Mr Bradley on behalf of the Respondent submitted that the Employment Tribunal accepted that the choice of the wrong procedure amounted to mistreatment but that as that incorrect choice could be challenged within that procedure and potentially rectified it was less serious than if it was irrevocable. In any event the Tribunal found that the Appellant had intended to raise this at the meeting on 15 May 2003 had he not resigned. Mr Bradley accepted that the Tribunal did not deal with this issue specifically as an allegation of bad faith, but it was very difficult to see, he submitted, how it could be described as bad faith. It was arguably acceptable to have chosen the personal misconduct route and in any event the Trust was legally advised to take that route.
42.	The referral to the GMC before the investigation had been completed and without notifying the Appellant, as alleged in paragraphs 35.9 and 35.10 of the closing submissions, amounted to bad faith Mr Hyams submitted on behalf of Dr Varma. The Appellant’s contract of employment required a referral to be considered only after the investigation of any alleged misconduct was completed and although the Tribunal recognised that the failure to canvas the issues fully with Dr Varma before the reference to the GMC amounted to mistreatment they did not fully appreciate the seriousness of this allegation. Equally the failure to notify the Appellant was in breach of the government’s circular HSC2002/008 which requires, in paragraph 18, that the NHS body must give notice in writing, to the person who is the subject of the referral, of the decision to refer.
43.	Mr Bradley on behalf of the Respondent submitted that whilst the Tribunal regarded both of these allegations as mistreatment or justifying criticism they did not regard them as being in fundament breach of contract. Mr Bradley submitted that they could not properly have been regarded as major matters.
44.	Mr Hyams submitted on behalf of the Appellant that the Respondents were ‘fishing’ for evidence to justify Dr Varma’s dismissal by contacting Sheffield University and putting improper pressure on the Appellant to agree to them contacting that university in connection with his education. They should only have done so in order to assist supporting him to reach his standards, as the General Medical Council’s letter of 3 September 2002 demonstrates, whereas in fact although they purported to be doing that, they were in reality seeking evidence simply to justify his dismissal, not with a genuine view to assisting him to return to his training.
45.	The Respondent submitted that it was the obligation of the Trust to investigate the situation at Sheffield University. It was the Appellant’s own manuscript for a book which he had shown to his supervising consultant at the Trust, which suggested that he obtained his entry to his medical finals by improper means. As the Appellant was in training at the time, as the Tribunal pointed out in paragraph 26 of its decision, it was the Trust’s duty to investigate this matter. It cannot conceivably be represented as an example of bad faith. The Dean, who had asked for Dr Varma’s consent to approach Sheffield University, was not in fact employed by the Trust.
46.	Ground 2. It was submitted on behalf of the Appellant that the Respondent’s use of the wrong contractual procedure was of great significance. The Tribunal found correctly that the wrong procedure had been chosen, as although there was a substantial number of allegations of personal misconduct there were also allegations of professional misconduct, and that overlap necessitated the choice of the professional misconduct route as the House of Lords decided in Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 paragraphs 15-19 and the Court of Appeal in Saeed v Royal Wolverhampton NHS Trust [2001] ICR 903 paragraphs 12 and 27. Nevertheless the Tribunal’s finding that the fact that the wrong procedure could be challenged by a relatively straightforward process within the procedure meant that the mistreatment was not serious, was an error. Mr Hyams submitted that the adoption of the wrong procedure in itself was a breach of contract and on the facts of this particular case a fundamental breach. The mere fact that it could be challenged could not detract from the fact that it was a repudiation which was open to the employee to accept as the Court of Appeal found in Saeed at paragraph 12. It followed that as soon as the wrong procedure had been adopted in the case, the contract was broken and repudiation could be accepted. Mr Hyams accepted that it depended on the severity of the effect of the breach. If however the wrong route was chosen paragraph 12 of Saeed demonstrated that the employee had the option to sue for breach of contract.
47.	The actual panel chosen for the personal misconduct disciplinary hearing included one non-executive director of the Trust which showed that there was a significant breach. The Appellant had asked the Respondent to say upon what basis the procedure had been adopted but the Respondent did not reply. Accordingly the procedure was never properly challenged because the Appellant had received documents which showed that the Respondent was trying to get rid of him in any way.
48.	The case of Toulson v Governing Body of Mixenden Community School [2003] IRLR 842 at paragraphs 5 and 8 shows that one must concentrate upon the employer’s acts and omissions not those of the employee.
49.	During the course of argument Mr Hyams accepted that his submission that the adoption of the wrong procedure in itself amounted to a fundamental breach and hence repudiation which the employee could accept, did not apply inevitably to every case but was fact dependent. Here, Mr Hyams submitted, as the Appellant had asked the Respondent about the procedure but had had no response the breach was fundamental. When asked to show in the documents where this was so Mr Hyams was unable to point to any document which supported his case. He initially relied upon the letter from Dr Varma’s solicitors of 29 January 2003 but accepted that this did not challenge the choice of disciplinary procedure. He said however that it did so obliquely, even though it was primarily dealing with the need for the involvement of the postgraduate Dean before a suspension could take place, and hence dealing with a breach of the procedure for suspension.
50.	The Respondents submitted that Ground 2 was bound to fail. Nowhere in the case of Skidmore did it say that the choice of the wrong procedure was a fundamental breach of contract. The fact that the House of Lords remitted that case back to the Employment Tribunal demonstrates that they did not find that the choice of the wrong procedure per se was a repudiatory breach. The contract was not broken when the management chose the route as there was a clear contractual mechanism for challenging that choice. The Appellant resigned rather than choosing to challenge the choice of procedure. Furthermore, as the Tribunal found, that resignation was nothing to do with the wrong choice of procedure. On any view, on the facts of this case there was no fundamental breach and the Tribunal decision at paragraphs 28 – 31 was plainly correct.
51.	Ground 6. The suspension itself could be a fundamental breach of contract Mr Hyams submitted and was not a ‘neutral act’. Mezey v South West London and St George’s Mental Health NHS Trust [2007] IRLR 244. The Appellant’s suspension was wrong and he had been left in limbo for a long time. The Employment Tribunal concluded that the fact that he did not know that his suspension was unlawful meant that he could not rely upon it. It was however clear that he did not know that his suspension was not in breach of contract. He said in evidence that he did not know whether a consultation had taken place, not that he knew that it had. Therefore the Tribunal’s conclusion that his understanding was that such consultation had taken place was wrong.
52.	The letters which were written by his solicitor on his behalf of 2 December 2002 and 29 January 2003 demonstrated that he thought that as the Dean had indicated earlier that he did not wish to involve himself in the matter further, he wished to know whether the Dean had advised that he should be suspended. Those letters showed that he thought that no consultation had taken place. The finding of the Tribunal that he said that there had been such a consultation was therefore irrational.
53.	Mr Bradley submitted on behalf of the Respondent that without asking for the Chairman’s notes the Appellant simply could not contend that the Tribunal’s finding of fact was wrong. Furthermore the Chairman’s notes must say that Dr Varma told them that as at the date he resigned it was his understanding that such a consultation had taken place, as otherwise the Tribunal would not have recorded that evidence in paragraph 17 of the decision.
54.	In any event, Mr Bradley submitted this was not of any importance on the Appellant’s mind as he didn’t know at the time of his resignation whether the Dean had approved his suspension. His witness statement in paragraph 36 made this entirely clear. There was therefore no need for the topic to be challenged in cross-examination and this is the reason why there is no such note in cross-examination of any such question being asked. Nor was the point raised in the skeleton argument for the liability hearing or in closing submissions. It followed that the point could not get off the ground.
55.	Ground 7. Mr Hyams accepted that this ground was essentially one which was consequential upon the earlier submissions. The finding that one of the real causes of the Appellant’s resignation was the low esteem which his colleagues held him was a failure by the Tribunal to understand that the low esteem was all part of the background of bad faith by the Respondent. It underlines the fact that they did not consider the issue of bad faith properly because ‘low esteem’ was shorthand for the hostility which the Appellant saw from his colleagues and which, he submitted was evidence of bad faith.
56.	Secondly the Tribunal could not properly conclude that the Appellant’s dismissal was very likely to have been fair. The outcome was not known and the Tribunal had failed to take into account the allegations of bad faith and the impact of following the wrong disciplinary procedure in making that finding. Furthermore the Appellant said in his letter of 15 May 2003 that he did not believe he would receive a fair hearing, and that a decision about his future employment had already been determined. He had in mind, as paragraph 56 of his witness statement shows, the whole situation in making his decision to resign. This included his wrongful suspension.
57.	It was submitted on behalf of the Respondent that the Employment Tribunal were not finding that the disciplinary proceedings would have resulted in a fair dismissal, but that the Appellant thought himself that it would result in his fair dismissal. He knew that whichever route of disciplinary procedure was taken, the result would be the same and he was entirely well aware that his supervising colleagues held him in low esteem. The findings made by the Tribunal to this effect were unassailable. In the first sentence of paragraph 44 the Employment Tribunal rejected the Appellant’s explanation as to why he resigned. He did not therefore satisfy the burden of proving why he did in fact resign. The Tribunal’s findings were correct and Ground 7 must, the Respondent submitted, fail.
Conclusions
58.	Ground 1. The Tribunal dealt thoroughly but succinctly with the Appellant’s allegations of fundamental breach of contract by the Trust. They clearly had in mind the fact that at the heart of the Appellant’s case lay the assertion that each and every step taken by the Trust was designed to achieve his dismissal and pre-determined. When dealing with the allegation in relation to Mr Johnston and the inevitability of dismissal they specifically dealt with the allegation that the employees of the Trust were going to see that Dr Varma’s employment would terminate by improper and unprofessional means. They clearly had in mind the underlying assertion by Dr Varma that the Trust was trying to get rid of him by fair means or foul. We are entirely satisfied that the Tribunal approached the matter properly, dealt with the allegations set out in the skeleton argument, the closing submissions and the oral submissions fully and appropriately. In doing so they did not have to refer to each and every allegation or submission or to the words ‘bad faith’ as they clearly dealt with the substance and thrust of that underlying allegation.
59.	As to the individual matters relied upon, the assertion in paragraph 35.4 of the closing submissions and advanced before us that the true reading of Dr Murphy’s evidence and contemporaneous documents was that he had acted in bad faith was unsustainable. The Tribunal found that the Trust had acted in good faith in not suspending Dr Varma in March when he had taken an overdose and was likely to be in a delicate mental state, and they were anxious to avoid a suspension because of the possible adverse affect it might have on Dr Varma’s career. Consideration of Dr Murphy’s letter of 10 July 2002 and Dr McNamara’s letter of 12 April fully supports the Tribunal’s findings. There clearly was concern about Dr Varma’s health which was investigated, and concerns about whether he was attempting to mislead the Trust. It was the desire to ensure that Dr Varma’s career was preserved and nurtured, consistent with the interests of patients treated by him which caused the Trust to seek the assistance of the National Clinical Assessment Authority and not suspend him at that stage. The submission that the Tribunal’s findings of good faith on this issue are wrong is totally without merit.
60.	The Tribunal expressly considered the matters set out in paragraph 35.5 of the closing submissions and the issue of predetermination more generally under paragraphs 37 – 42 of the decision under the heading Inevitability of dismissal. They did not just consider the documents, as paragraph 39 makes clear. They there refer to there being ‘no documents and no information’ that might reasonably have led Dr Varma to conclude that he would receive anything other than a fair hearing. 
61.	The documents were however the origin of Dr Varma’s belief that he would not get a fair hearing. It is important to note the background to Mr Johnston’s view that they ought to go through formal disciplinary process with legal advice and sack Dr Varma, and the recommendation to dismiss which Dr Rose would have given to the panel had it sat on 15 May 2003. The background is the existence of serious allegations of misconduct which were sufficiently grave for Dr Varma’s representatives to concede that they warranted disciplinary procedures being invoked. The documents in the EAT bundle show that dishonesty, attempts to mislead the Trust, breach of professional duty, apparent fantasies as to his past, invented e‑mails from a fictitious person, and allegations of bribery against his former University at Sheffield formed part of the misconduct alleged against him. 
62.	It is not surprising in these circumstances that the Tribunal found that Mr Johnston was entitled to hold and express the view that Dr Varma was someone who should not be employed by the Trust. It was, in the Tribunal’s judgment, perfectly proper to hold such a view. They were equally clear in their conclusion that no reasonable person could come to the conclusion from the documents which caused Dr Varma to believe that he would not get a fair hearing, that employees of the Trust were going, by improper and unprofessional means, to see that his employment would terminate. It is clear that the Tribunal was acquitting the ‘various employees of the Trust’ including Dr Rose and Mr Johnston of any allegation of improper conduct and hence, although they do not use the words, acquitting the Trust of bad faith. There was, the Tribunal found, nothing in either the documents or the information before them that might reasonably have led Dr Varma to conclude that he would receive anything other than a fair hearing. On the evidence before the Tribunal these findings were unimpeachable.
63.	The Tribunal’s conclusion that they saw no reason to criticise the Trust for the number or gravity of the matters alleged against Dr Varma and that although a number were relatively unimportant there was no reason why they should not be considered, cannot properly be criticised. The allegation that the inclusion of so many items of trivial detail is evidence of bad faith is unsustainable. This is so in any event, but particularly so when it is considered that the documents disclose that the Trust were concerned about including so much detail but were advised by their solicitor to do so. (e-mail 13 January 2003) The fact that one of these allegations, namely that relating to cross dressing, turned out to be unfounded could not have justified a finding of bad faith. We reject the proposition that the Tribunal dealt inadequately or were wrong in their conclusions expressed in paragraph 27 of their decision. This finding deals adequately and properly with the matters set out at paragraphs 35.7 and 35.12 of the closing submissions.
64.	The choice of the personal misconduct route cannot on the facts before the Tribunal amount to a valid allegation of bad faith. The Trust received legal advice upon this matter and, as the Tribunal pointed out in paragraph 8 of its decision the bulk of the allegations did in fact relate to personal misconduct rather than clinical competence and it was for that reason that the disciplinary procedure was adopted. This was an unusual and difficult case for the Trust to manage where there were many allegations of personal misconduct, where they took legal advice and where there was within the procedure, a process whereby the choice of route could be challenged. A finding of bad faith on the facts before the Tribunal would have been inappropriate.
65.	As to Mr Hyams’ reliance upon 35.9 and 35.10 in the written closing submissions the Tribunal considered these matters properly in paragraphs 32 – 35 of the decision and their decisions relating thereto cannot be faulted. It is to be noted that government circular HSC2002/008 states that if an NHS body judges that the fitness to practise of a health professional is called into question it must inform the appropriate regulatory authority as well as informing the person concerned that a referral has been made. Where a substantial number of very serious allegations are being made against a health professional it is the duty of a Trust to refer that person to the GMC if the allegations are such that the fitness to practise of the professional concerned is called into question. The Trust clearly made that judgment in relation to the allegations made against Dr Varma and there is no basis for saying, in view of the severity of some of the allegations, that they were acting in bad faith in doing so. On the contrary it was the duty of the Trust to refer the matter, even though their own investigations had not been completed. The Tribunal’s finding that there was mistreatment but no fundamental breach of contract was appropriate and justified in respect of both of these allegations. Bad faith did not arise.
66.	Similar considerations apply to the allegations of bad faith in relation to paragraph 35.11 of the submissions. Dr Varma was in training and the Trust needed to determine whether he was a fit and proper person to be a doctor. Given the material in the manuscript for his own book suggested that he had obtained his entry to finals by improper means, the Trust was entitled to ask his permission to approach Sheffield University to investigate the matter. If it transpired that there was absolutely no substance in the matter at all but some kind of misunderstanding then the clarification would indeed assist Dr Varma. If the result of any such investigation was to demonstrate that improper means had been used this could, as indeed it did, give rise to a serious allegation against Dr Varma. The Tribunal was entirely justified in finding that Dr Varma’s refusal of consent to approach Sheffield University on such an important matter was an issue which the Trust was entitled to address in the course of the disciplinary process. Dr Varma was at liberty to contend that it was not a relevant issue had the disciplinary hearing gone ahead. The Tribunal dealt with this allegation properly and came to a conclusion which cannot be criticised. The fact that Dr Varma was in training at the time and that he himself had caused doubts to be raised as to his conduct at Sheffield University meant that the Trust was obliged to pursue the course it did. An assertion of bad faith in relation to this matter is again without foundation.
67.	Ground 2. Where there is an overlap between professional misconduct and personal misconduct an employer must choose the professional misconduct procedure as this provides greater safeguards to the employee. The Tribunal found that this was so in paragraph 29 of their decision, clearly persuaded, albeit not citing them, by the decisions in Skidmore and Saeed.
68.	Mr Hyams’ initial submission that the choice of the wrong procedure per se created a fundamental breach and hence repudiation of contract which the employee could accept was, as he conceded in argument, incorrect. If he was right, the choice of the wrong procedure would be fatal in any case even though the employer had the gravest possible grounds to dismiss and yet had made a mistaken but genuine incorrect choice in the type of procedure. The fact which Mr Hyams relied upon as rendering this case sufficiently severe to amount to a fundamental breach in its choice of procedure was however unsupported by the evidence. There is nothing in the documents before us to show that the wrong procedure was challenged and still denied. Even if it had been, we are of the view that the Tribunal was correct in concluding that the existence within the procedure of a process whereby the choice of procedure could be challenged, prevented the choice of the wrong procedure from being a fundamental breach. In any event on the particular facts of this case the Trust was acting upon legal advice, there were many allegations of personal misconduct, the choice of which procedure was accordingly a difficult one, and the right to challenge that choice of procedure existed. In these circumstances we regard the findings of the Tribunal at paragraphs 28-31 as being unassailable. Ground 2 is therefore rejected.
69.	We accept Mr Bradley’s submissions on Ground 6. The finding of fact by the Tribunal, that Dr Varma told them that as at the date he resigned it was his understanding that such consultation had taken place, cannot be challenged without the Chairman’s notes. Furthermore, it is clear from Dr Varma’s own witness statement that as at the date of his resignation he did not know whether such a consultation had in fact taken place. This appeal Tribunal must work on the premise that the evidence as understood by the Tribunal, in the absence of any notes to the contrary, was that Dr Varma’s evidence was that at the date of his resignation it was his understanding that such a consultation had taken place. There is no basis upon which we could conclude that the finding on this issue made by the Tribunal was irrational.
70.	As to Ground 7 we regard the findings in paragraphs 43 and 44 of the Tribunal’s decision as unassailable. There was ample material upon which such findings could be based. The nature of the allegations, the response of his supervising doctors to them, and the content of Dr McNamara’s letter of 12 April 2002 demonstrate that there was clear evidence available upon which the Tribunal could find that the real reason for the resignation was firstly the awareness of the low esteem in which he was held by his colleagues after he had seen the documents disclosed to him in April 2003 and secondly his appreciation that were he to attend the disciplinary hearing he was very likely to be fairly dismissed. It is important to note that the Tribunal specifically rejected Dr Varma’s evidence as to the reasons which led to his resignation. These findings were proper and available to the Tribunal on the evidence before it and cannot be the subject of appropriate challenge.
71.	Generally, we consider that the Tribunal had well in mind both the individual allegations made by the Appellant and their cumulative effect. The decision demonstrates that this is so. The Tribunal were clearly aware of both the general and the particular thrust of the Appellant’s case and dealt with it accordingly and properly. No reasonable tribunal could have made a finding of bad faith on the evidence before the Tribunal. We have unanimously concluded that this is an unmeritorious appeal and must be dismissed.