Dumbarton medical practice fails to suspend order to re-engage doctor

A medical practice that took on the staff of a dissolved practice has been unsuccessful in its petition to suspend an Employment Tribunal order requiring it to re-engage a doctor who was employed by the dissolved practice.

Levenside Medical Practice, based in Dumbarton, argued that an order could not be made against it because it was not party to the Employment Tribunal proceedings in which the order was sought.

The case was heard in the Outer House of the Court of Session by Lord Pentland.

Unfairly dismissed

The relevant Employment Tribunal proceedings were initiated by Dr David Neilson, who previously been a partner in another medical practice operating from the same location. In March 2017 the practice was dissolved and its staff were transferred to the Health Board. Dr Neilson accepted a fixed term contract that expired in July 2017.

The Health Board invited applications from existing local GP practices to provide primary care medical services to the patients of the dissolved practice with effect from 1 August 2017. The letter inviting applications explained that the contracts of employment of the five members of staff of the dissolved practice would transfer to the successful applicant by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006. Dr Neilson was not amongst the members of staff to be transferred.

The petitioner successfully applied to take on the patients of the dissolved practice. The application stated that it did not propose to employ Dr Neilson. In November 2017 Dr Neilson went to the Employment Tribunal claiming he had been unfairly dismissed when his contract of employment was not automatically transferred to the petitioner under the TUPE regulations on 31 July 2017.

In his claim, Dr Neilson sought an order for re-engagement “on terms no less beneficial than those which had governed his employment by the Health Board”. The petitioner was not a party to these proceedings, which were brought against the Health Board.

It was submitted that the Employment Rights Act 1996 provided that an order for re-engagement could be made against a successor of the employer, thus making it unnecessary to add the petitioner to the tribunal proceedings. The Employment Tribunal found that Dr Neilson had been unfairly dismissed following an admission to that effect by the Health Board.

At the remedies hearing, one of the partners in the petitioner gave evidence that it would not be practicable for the practice to re-engage Dr Neilson. However, the Employment Judge found that Dr Neilson should be re-engaged by the petitioner as a salaried GP working 0.8 full time equivalent, as well as paid arrears by the Health Board.

The Health Board appealed the decision to the Employment Appeal Tribunal, a sifting decision on which had not been made at the time the petitioner’s case was being considered.

The petitioner submitted that the tribunal’s order was ultra vires because it had not been a party to proceedings. It also claimed that the order breached rules of natural justice and infringed the right to a fair trial under Article 6 of the ECHR.

Dr Neilson, who lodged answers to the petition, submitted that the petitioner had a right of appeal to the Employment Appeal Tribunal despite not being a party to the original proceedings.

No exclusion of non-parties

In his opinion, Lord Pentland first considered the petitioner’s right of appeal, saying: “I consider that the language of [the Employment Tribunals Act 1996] does not exclude an appeal by a non-party. The practice and procedure of the Scottish civil courts are not matters of relevance in the context of construing the statutory provision. The Employment Appeal Tribunal, which has a UK-wide jurisdiction, has its own practice and procedure.”

He continued: “The petitioner had a statutory right to institute an appeal against the judgment of the Employment Tribunal. It must be taken to have elected not to exercise that right. The petitioner has not explained why it decided not to do so. It has a real interest in the outcome of the proceedings before the Employment Tribunal in circumstances where it was not a party to those proceedings and the Health Board’s appeal is on different grounds. It seems to me that this is the sort of situation which [is] suitable and appropriate for an appeal by a non-party.”

On the competency of the current petition, he said: “The proposition for which [the petitioner] contended [is] that a party, who has a statutory right of appeal available to it, is entitled to decline to exercise that right and instead apply to the Court of Session for suspension of the decree or order of the inferior court or tribunal. In my opinion, that proposition is not supported by the authorities. If it were sound, it would mean that a party could effectively bypass a prescribed statutory avenue of appeal and come directly to the Court of Session (without leave) by way of a petition for suspension or reduction.“

He continued: “Such a course would, in my judgment, entail offending against what Viscount Dunedin said in [Adair v Colville & Sons (1926)] should not be done, namely to ‘interfere with the wisdom of the legislature’.”

Lord Pentland concluded: “At the time when it was presented to the court the petition was incompetent because the petitioner had an extant statutory right of appeal against the order which it sought to have suspended. The time limit for instituting an appeal has now expired, but it remains open to the petitioner to seek an extension of it. The availability of these statutory mechanisms for challenging the order of the Employment Tribunal renders the petition incompetent in my opinion.”

For these reasons, the petition was refused.