Dr Richard MacCallum v Forth Valley Health Board — 2024

The tribunal held that Dr Richard MacCallum was unfairly dismissed by Forth Valley Health Board. The respondent dismissed him for conduct following allegations arising from communications with a former patient and an alleged visit to her home. The tribunal accepted that conduct was the reason for dismissal and that this was a potentially fair reason under section 98(2)(b) ERA 1996, but concluded that the dismissal was unfair under section 98(4).

On the substance of the allegations, the tribunal found that the respondent had reasonable grounds for believing that the claimant made the phone calls and sent the text messages in issue without a reasonable work-related or other legitimate reason, and that those communications breached proper professional boundaries. The tribunal did not accept that there were reasonable grounds for concluding that the claimant had visited the patient at her home. It also rejected the respondent’s reliance on alleged dishonesty during the disciplinary process, finding that dishonesty had not been fairly put to the claimant and that the sanction panel’s reasoning on dishonesty, including reliance on his demeanour and hesitation when answering, was unsound.

The tribunal found serious procedural unfairness. The disciplinary process lasted more than seven years from suspension to the conclusion of appeal, far outside a reasonable range and inconsistent with the respondent’s own procedures and the ACAS Code expectation that matters be handled without unreasonable delay. The tribunal also found that, although the Annex C investigation process was otherwise elaborate and careful, the claimant was never given an effective opportunity at sanction or appeal stage to challenge whether certain factual findings were sufficiently supported by the evidence. Those procedural defects were not cured on appeal.

On sanction, the tribunal concluded that dismissal fell outside the range of reasonable responses. Even on the facts reasonably established, reasonable employers might have imposed some disciplinary sanction, but not dismissal for gross misconduct. The tribunal placed weight on the claimant’s long and previously unblemished service, extensive remediation, insight, testimonials, and the absence of cogent evidence of a significant risk of recurrence. It therefore held the dismissal unfair. The tribunal further found that the claimant’s conduct in making the calls and sending the texts was blameworthy and contributed to his dismissal, so any basic and compensatory awards should be reduced by 15% for contributory conduct, but there should be no further reduction under Polkey because a fair procedure would not have led this respondent to dismiss him.