A&E doctor who sent messages to ex-patient wins unfair dismissal claim before Employment Tribunal

Dr Richard MacCallum was suspended on full pay by Forth Valley Health Board for more than six-and-a-half years prior to his ultimate dismissal without notice for gross misconduct. He argued that the considerable delay in reaching the appeal hearing stage was procedurally unfair and had led to the panel drawing inappropriate inferences about his evidence.

The case was heard by Employment Judge M Whitcombe. Ms H Hogben appeared as counsel for the claimant and Mr J Anderson for the respondent.

Interpreted as dishonesty

From 1 May 2004 to 5 June 2023, the claimant was employed as an Emergency Department Consultant based at Forth Valley Royal Hospital in Larbert. On 22 November 2016 he was suspended after he was found to have communicated with a patient and visited their home address without any reasonable work-related or other legitimate reason. He appealed unsuccessfully against his dismissal on 19 January 2024, after the commencement of ET proceedings.

The respondent first received a complaint from the patient’s two daughters on 16 November 2016, which alleged that an inappropriate relationship had developed between the claimant and their mother that had quickly become sexual. The next day the claimant was asked to meet with someone from HR and the Medical Director and was told not to return to work that weekend. He was later suspended with full pay.

The claimant denied having sexual relations with the patient, but at a fitness to practice hearing in 2019 it was found that text messages he sent to the patient amounted to serious misconduct. Nonetheless the panel found that fitness to practice was not impaired. Despite this, it was decided in March 2020 that the claimant should remain on suspension. Proceedings were further suspended due to the pandemic, and then by health problems developed by the claimant, which he attributed to the stress of the ongoing delay.

It was submitted for the claimant that there were serious flaws in the investigation process. The process was delayed well beyond the target maximum of 32 weeks, stretching over six years, which resulted in procedural unfairness. This impaired the cogency of the evidence he was able to give, which was interpreted by the panel as dishonesty.

Counsel went on to submit that the sanction panel’s finding of dishonesty was problematic. It was based to a significant degree on the claimant’s “demeanour” and the contrast between his perceived fluency when talking about certain matters and his perceived hesitancy when talking about the patient. The claimant was given no fair opportunity to address these matters. There were strong mitigating factors, including that the claimant had prepared a teaching presentation for junior doctors in 2018 encouraging them to learn from his mistakes.

Massive source of stress

In his decision, Employment Judge Whitcombe said of the long delay in proceedings: “I do not propose to dissect the seven years that the process took. I think it is sufficient to say that all reasonable health boards would have completed it before the end of the 2017 calendar year, barring genuinely exceptional circumstances.”

He continued: “The time taken to conclude the disciplinary process in this case was in tension with the respondent’s own policy in relation to suspensions. The suspension reporting requirements and the frequency of reviews required by the Guidance suggest a much shorter process. It is inconceivable that the authors of that document were contemplating that a suspension could properly be reviewed at least every two weeks, for more than 6.5 years.”

Assessing the cogency of the claimant’s evidence, he said: “At the sanction hearing, the relevant events had occurred more than six years earlier, and the consequences had been a massive source of stress to the claimant, adversely affecting his health. In those circumstances there would be many acceptable reasons for the claimant to have hesitated when discussing the patient, and an inference of dishonesty had no reasonable basis.”

However, on contributory fault the Employment Judge concluded: “The making of those calls and the sending of those texts without a proper clinical or other work-related reason was blameworthy conduct. It was a failure to maintain proper professional boundaries. The fact that the patient was obviously vulnerable was an aggravating factor. However, the claimant also had powerful mitigating factors and the respondent’s decision to dismiss was outside the reasonable range.”

Accordingly, it was found that the claimant was unfairly dismissed, with the basic and compensatory awards to be reduced by 15 per cent given the claimant’s contributory fault.