Individual managers are liable for record discrimination award as well as trust
The BMJ published the outcome of Dr Eva Michalak’s employment tribunal in which her employers were found to have discriminated against her on grounds of race and sex, and victimised her for protected disclosures (BMJ 2011;343:d8265 and BMJ 2012;344:d8293). Dr Michalak was suspended on 16th January 2006 and unfairly dismissed on 14th July 2008. The campaign of discrimination, victimisation, harassment, unlawful suspension and unfair dismissal that ran from 19th March 2003 rendered Dr Michalak so ill that the employment tribunal deemed she will not work as a doctor again. This “career loss” resulted in record damages of £4.5million (£2million of which is for tax). It is the highest award at an employment tribunal in the UK but is also notable for other reasons that doctors should note.
In February 2005 the DoH, BMA and BDA published “Maintaining High Professional Standards in the Modern NHS” (MHPS). NHS Trusts adopted the scheme, with any modifications added by Local Negotiating Committees including their BMA reps. The requirement to implement MHPS did not convey power to vary existing employment contracts. Existing Consultants were deemed to have accepted the changes by virtue of the local negotiations whether or not they were BMA members, but after Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust (2006), such substantive changes to Consultant contracts could not be imposed without overt acceptance. NHS Employers issued advice to NHS Trusts that Consultants should individually signify that acceptance.
Parts of MHPS replaced disciplinary procedures in Health Circular (90)9 (“Disciplinary Procedures for Hospital and Community Dental Staff”). In so doing the Special Professional Panels ('the three wise men") provided for in HC(82)13 that were independent of the employer were abolished, together with a doctors right to a legally qualified independent Chairman, and the right to independent appeal to the Secretary of State. This independence in doctors’ disciplinary procedures was erased in favour of local panels and no appeal outside of the employer. MHPS also denied a doctor the right to be represented by a lawyer, though after Kulkarni v. Milton Keynes Hospital NHS Foundation Trust (2006), this was reversed.
What happened to Dr Michalak resulted from the employing Trust undertaking an unlawful campaign of harassment while making extraordinary efforts to avoid external oversight of its activities and without any independence in proceedings. Indeed the employment tribunal found that all forms of external scrutiny were circumvented.
The employment tribunal found Dr Michalak was suspended improperly under MHPS, but Dr Michalak also never indicated her acceptance of MHPS. The employing Trust never wrote to Dr Michalak directly to seek her acceptance of MHPS even though NCAS reminded them to do so. Dr Michalak even sought a High Court injunction to have a process compliant with HC(90)9 imposed - in order to bring an independence in disciplinary proceedings. That case in October 2007 was sponsored by the BMA but thwarted, in part because the Trust submitted a witness statement that the employment tribunal later found contained deliberate untruths. The BMA had to pay £48,000 of its members’ money to the Trust in legal costs that should perhaps now be returned by the Trust. It is money that could be reserved to assist another doctor in difficulty.
What happened to Dr Michalak did not happen overnight. Severe personal injury was inflicted by the actions taken against Dr Michalak over a period of years. Fundamental to the campaign was the avoidance of independent oversight that would not have been so easy had the provisions of HC(90)9 remained in force.
The BMA negotiated away significant employment rights by supporting MHPS. Doctors signed away these rights without understanding the potential for abuse of process. The NHS is a monopoly employer able to exert excessive influence over the lives and careers of doctors and has unlimited resources to deploy. Its senior executives can, if they choose, abuse their executive powers. Indeed, the employment tribunal awarded £4,000 to Dr Michalak for exemplary damages specifically for the manner in which she was excluded. This rare form of damages is reserved to punish arbitrary, oppressive and unconstitutional acts by servants of the Government. This finding alone marks Dr Michalak's case as extreme.
Dr Michalak became too ill to represent herself. The BMA declined to support Dr Michalak’s discrimination claims before the employment tribunal so her husband, Dr Julian De Havilland, did the job. Dr De Havilland secured exoneration from all of the reasons for Dr Michalak’s dismissal that were also used to refer Dr Michalak to the GMC. He restored Dr Michalak’s reputation by the specific finding of no contributory fault ascribed to Dr Michalak. He further received an unreserved apology from the Trust and secured a letter retracting its referral to the GMC that states the Trust “had no legitimate reason to question Dr Michalak’s fitness to practise”. The record award of damages is only part of what Dr De Havilland achieved.
The respondent Trust accepted vicarious liability for the unlawful acts of its employees. The Trust indemnified the senior individuals involved and sponsored their legal representation even after they left the Trust and were no longer its employees. The extent to which record damages may be a deterrent to others is diminished by the Trust’s adoption of financial liability. The Trust declined to reveal how much it spent prosecuting the disciplinary process against Dr Michalak, including her locum replacement for 21/2 years, and then defending the employment tribunal with a team of lawyers that so spectacularly lost to Dr De Havilland.
The employment tribunal was the only independent forum available to Dr Michalak. Had the rights in HC(90)9 not been surrendered, independent review in 2006 or 2007 could have stopped what was happening before Dr Michalak became so ill. Dr Michalak’s is an extreme case, but it is folly to imagine hers is the only one. Doctors will not understand what was given up, until they go to work one day, like Dr Michalak did on 16th January 2006, and are summarily excluded without warning. They will then rue the day they accepted MHPS.