Employment Law Case Update ' July 2023

• Published date: 01 August 2023
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals
• Law Firm: Dixcart UK
• Author: Ms Anne-Marie Pavitt LLB (Hons) LLM

A round-up of the most significant employment law cases to be published over the last month, and it's a varied bag. We look at what lead to an interim injunction before a disciplinary hearing, whether it was lawful for the government to revoke legislation without consultation, whether a person can have two employers at the same time for the same work, whether a dismissal meeting is always needed to ensure a fair process and how a lay tribunal member could be considered to have been biased.

• Injunctions: Witnesses and disclosure of documents at disciplinary hearings
• Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
• Worker Status: Can a person have two different employers at the same time for the same work?
• Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
• Tribunals: Apparent bias in case of lay member posting on social media

Injunctions: Witnesses and disclosure of documents at disciplinary hearings

In Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant was the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.

This case involved two issues in dispute: 1) whether the Claimant had a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant was not proposing to call to give evidence, and 2) whether the Claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claimed that the way the Defendant had dealt with those two matters breached express contractual obligations, contained in two documents which he contended formed part of his contract: (1) "Maintaining High Professional Standards in the Modern NHS" ("MHPS") published by the Department of Health; and (2) "Managing Conduct Policy" ("MCP"), the Defendant's policy for dealing with allegations of misconduct.

In December 2020, the Defendant commissioned an external review to examine the department in which the Claimant worked following allegations having been raised of inappropriate workplace behaviour. A report was produced in February 2021 ("the Atkinson Report") by the external reviewer, and considered the behaviour of a number of individuals, including the Claimant, and made recommendations, one of which was that the Claimant should be investigated for alleged bullying / inappropriate behaviour. The Claimant was excluded from work from 8 March 2021 while an investigation was carried out (conducted pursuant to the MHPS). An external report was commissioned involving the interviewing of 21 witnesses, including the claimant, and a further report submitted in December 2021 ("the Cunningham Report"). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.

On 16 December 2021 a...