Right to fair hearing not engaged in process leading to dismissal from employment
Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 (18 May 2012)
Summary
The England and Wales Court of Appeal has found that a disciplinary process which resulted in the dismissal of an employee did not engage that employee’s civil rights under the European Convention of Human Rights. Thus, the employer was not bound by the obligations to provide a fair hearing under the Convention.
Facts
The applicant, Dr Mattu, was employed as a consultant cardiologist. In 2002, he was suspended from his employment on disciplinary grounds. That disciplinary process took a number of years and, consequently, Dr Mattu remained suspended until July 2007. Due to his lengthy absence from work, Dr Mattu was required to update his clinical skills to ensure his safe return to medical practice.
The employer instructed Dr Mattu to engage in a re-skilling program. A dispute arose in relation to this issue and Dr Mattu refused to sign the employer’s return-to-work action plan. This dispute led to new allegations against Dr Mattu, including allegations that he was “unmanageable” and had unreasonably refused to comply with the action plan.
There was a further misconduct hearing into these new allegations, which was conducted by an independent panel. The panel determined that Dr Mattu had engaged in “gross misconduct” and he was consequently dismissed from his employment. The dismissal did not affect Dr Mattu’s entitlement to practise as a doctor.
Dr Mattu appealed the dismissal on a number of grounds, including the alleged failure by the employer to afford him a fair hearing in accordance with Article 6 of the Convention.
Issues
Relevantly, Article 6 of the Convention says:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Dr Mattu submitted that the misconduct hearing and the consequential decision to dismiss him from his employment was a “determination of his civil rights”, which engaged article 6. Moreover, he argued that the panel which reached the decision to dismiss him was neither independent nor impartial and that he had not been afforded a fair hearing.
Decision
The Court held that the decision to dismiss Dr Mattu from his employment was an exercise of the employer’s contractual rights – not Dr Mattu’s civil rights – and, therefore, did not engage article 6 of the Convention.
The Court drew a distinction between an employer’s contractual right of dismissal (which is not a civil right) and an employee’s rights not to be unfairly or unlawfully dismissal (which are civil rights). The Court also indicated that it may have reached a different conclusion if the dismissal had affected Dr Mattu’s ability to practise in the medical profession.
Relevance to the Victorian Charter
Under section 24 of the Charter, the right to a fair hearing is only engaged in circumstances where a person has been charged with a criminal offence, or is a party to a civil proceeding.
Although the position is perhaps already clear in Victoria, this case confirms that a public authority under the Charter is not obliged to give a fair hearing to an employee in matters concerning the contract of employment.
The decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2012/641.html
Emma Purdue is a lawyer at Lander & Rogers.
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