Mr R McIntosh v 15 Western Isles Health Board — 2025

Mr R McIntosh, a dentist employed by Western Isles Health Board, was dismissed on 29 January 2024 for alleged gross misconduct. This hearing on 18 and 19 December 2024 concerned a preliminary contractual issue in his unfair dismissal claim: whether the respondent should have applied NHS Circular 1990 (PCS) 8, or instead the Once for Scotland Conduct Policy, when disciplining him for allegations that included professional conduct or competence.

Employment Judge M Whitcombe held that the claimant’s original terms, and then his 2014 contractual terms, incorporated the 1990 (PCS) 8 procedure for allegations concerning professional conduct or competence. The tribunal found that the claimant fell within the scope of the circular as hospital dental staff, or alternatively community medicine staff, and that the NHS Scotland Public Dental Service terms preserved the distinction between personal conduct and professional issues. The respondent’s own conduct policy was found to have been intended to mirror the PIN model policy, which applied only to personal misconduct and directed professional conduct or competence matters to the circulars.

The tribunal also found that the later Once for Scotland policies, including the 2023 revisions, did not vary the claimant’s contractual terms. There was no express agreement with the claimant, no collective agreement through the appropriate negotiating bodies, and the British Dental Association had not agreed the change. The Programme Board’s policy changes were therefore ineffective to remove the contractual protection afforded by 1990 (PCS) 8. The tribunal added that the amended wording was in any event too vague to support the respondent’s construction, and that the disciplinary process had already begun before the August 2023 revision.

The tribunal concluded that the claimant was contractually entitled to have the charges against him dealt with under NHS Circular 1990 (PCS) 8, and that the published alterations to the Once for Scotland conduct policy had no effect on his contractual position. The judgment was on a preliminary issue only and did not decide the ultimate fairness of dismissal under section 98(4) of the Employment Rights Act 1996.