States of Jersey Complaints Board: findings – complaint against the States’ Employment Board regarding the withdrawal of an offer of employment to the position of Consultant Ophthalmologist.

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE STATES' EMPLOYMENT BOARD REGARDING THE WITHDRAWAL OF AN OFFER OF EMPLOYMENT TO THE POSITION OF CONSULTANT OPHTHALMOLOGIST

Presented to the States on 4th July 2016 by the Privileges and Procedures Committee

STATES GREFFE

2016  R.75

REPORT

Foreword

In accordance with Article 9(9) of the Administrative Decisions (Review) (Jersey) Law 1982,  the  Privileges and  Procedures  Committee  presents  the  findings  of  the Complaints  Board  constituted  under  the  above  Law  to  consider  a  complaint  by Dr. A. Alwitry against the States' Employment Board regarding the withdrawal of an offer of employment to the position of Consultant Ophthalmologist.

Connétable L. Norman of St. Clement Chairman, Privileges and Procedures Committee

STATES OF JERSEY COMPLAINTS BOARD 16th March 2016

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982 to consider a complaint by Dr. A. Alwitry

against the States' Employment Board

regarding the withdrawal of an offer of employment to the position of Consultant Ophthalmologist

Present –

Board members – G.G. Crill, Chairman S. Catchpole, Q.C. J. Eden

Complainant's representative – Advocate S. Chiddicks, Sinel Advocates

Respondent's representatives –

States' Employment Board –

T. Riley, Director of Human Resources, Health and Social Services Department Advocate L. Ingram, Davies and Ingram Advocates

C.   Stephenson ,  Director,  Employment  Relations,  Human  Resources Department

States Greffe

L.M. Hart , Deputy Greffier of the States K.M. Larbalestier, Clerk

The Hearing was held in public at 10.00 a.m. on 16th March 2016, in the Blampied Room, States Building, and reconvened on the morning of 17th March 2016.

1. Opening

The Chairman opened the Hearing by introducing members of the Board and outlining the process which would be followed.

2. Hearing

Summary of the Complainant's written case

1. The Board noted that Dr. Alwitry had entered into a permanent contract of employment with the States' Employment Board (SEB) as a Consultant in Ophthalmology, effective from 1st December 2012. This contract had been terminated by letter dated 22nd November 2012.
2. Within his written submission, Dr. Alwitry had submitted a copy of his contract of employment with the SEB and the terms and conditions of service. The

specific areas where Dr. Alwitry believed the SEB had failed to comply with the terms of the contract/terms and conditions of service were as follows –

General mutual obligations (section 3) – Dr. Alwitry contended that the SEB had failed to act in a spirit of mutual trust and that his main aim had been to achieve the best outcome for his patients by ensuring patient safety.

Job planning (section 6) – Dr. Alwitry believed that he could not be criticised for proposing changes to the job plan (in accordance with the terms of the contract), which would have better utilised resources and optimised patient safety.

Programmed activities/scheduling of activities (section 7.1) – Dr. Alwitry was of the view that there had been little attempt on the part of the employer to agree a job plan by discussion. Any assertion that Dr. Alwitry had sought to avoid operating on a Friday to "free-up" Saturdays was, he believed, defamatory and insulting  and  amounted  to  a  criticism  for  not  agreeing  to  carry  out  non- emergency work every weekend.

Dr. Alwitry was a glaucoma specialist and it was recognised that this serious sight disorder could lead to permanent blindness. In his written submission he had stated that he had not wished to operate on patients on a Friday as they would be left over the weekend without an optical pressure check, which could lead to blindness. He contended that Mr. R. Downes, Clinical Director was aware of his concerns in this respect and alleged that Mr. Downes deliberately compromised patient care by refusing to see his (Dr. Alwitry's) patients at weekends if problems arose or when Mr. Downes was on call.

Dr. Alwitry believed that he had raised legitimate patient safety concerns and had been dismissed for doing so. The Board had been provided with a copy of a  letter  dated  29th April 2014,  from  Sinel  Advocates,  representing  the Complainant, which refuted assertions that Dr. Alwitry had not previously raised patient safety claims.

Dr. Alwitry also pointed out that his job plan had 11.5 programmed activities each  week,  whereas  the  contract  stated  that  job  plans  would  contain 10 programmed activities each week, on average, subject to the provisions for emergency work arising from on-call rotas. Dr. Alwitry alleged that when he had questioned this he had been warned not to make any more demands.

Disciplinary matters (section 17) – Dr. Alwitry was of the opinion that the SEB had not adhered to the terms of the contract in that issues had not been resolved without recourse to formal procedures. Dr. Alwitry contended that the SEB had withdrawn the offer of employment without him being aware that there was a problem. He was of the opinion that the proper disciplinary procedure had not been followed and claimed that he had not been afforded the right to appeal.

Termination of employment (section 29) – Dr. Alwitry was of the view that none of the provisions regarding termination of employment had been followed. Consequently, he did not believe that his contract had been legally terminated. The Board had received an extract of the Employment (Jersey) Law 2003, with

Dr. Alwitry's submission and it was noted that he did not believe that the SEB had acted in accordance with certain provisions of the Law.

Entire terms (section 30) – Dr. Alwitry alleged that he had never been provided with  any  evidence  to  suggest  that  he  had  diverged  from  the  contract  of employment or the terms and conditions which governed his employment with the SEB.

3. The Board had been provided with copies of electronic mail exchanges between the Complainant and colleagues regarding clinical timetabling. Dr. Alwitry believed that the content of the e-mails had been relied upon to justify the withdrawal of the job offer. He was of the opinion that the tone of all, barring one e-mail from Mr. R. Downes, was pleasant and courteous. The Board also noted the contents of letters dated 26th November and 4th December 2012, and 7th January 2013,  from  Dr. B. McNeela,  Consultant  Ophthalmologist, disassociating himself from the decision to rescind the offer of employment and urging the Chief Minister to review the same. The Board also considered printed copies of text messages from Mr. L. Stevenson, a colleague of Dr. Alwitry's, who had provided him with a reference. It was noted that Mr. Stevenson had tried to intervene when he heard about the withdrawal of the job offer. In addition,  Dr. Alwitry  had  submitted  a  number  of  references/personal testimonials from professional colleagues in an attempt to rebut allegations that he was a "trouble-maker". Dr. Alwitry understood that the SEB had been led to believe that this was the view of former colleagues in the UK who were "glad to see the back of him". In addition, Dr. Alwitry had submitted a report from independent  glaucoma  specialists  which  set  out  current  best  practice  for patients, specifically in terms of the requirement for a clinic the day after the performance of glaucoma surgery.
   4. Dr. Alwitry's submission also included electronic mail exchanges regarding his start date. It was noted that he had made it clear on his application form that he was required to provide 6 months' notice to his employer before taking up the post in Jersey. Dr. Alwitry understood that the SEB was claiming that it was essential  that  he  take  up  his  post  within  3 months;  a  claim  which  the Complainant did not accept as he understood that waiting lists had reduced, despite the absence of a third consultant. In any case, Dr. Alwitry had ultimately agreed to take up his post within 3 months on the initial basis of a 3 day working week. He had anticipated that his travel would be funded by the employer but had subsequently discovered this was not to be the case. However, he had maintained his agreement to start 3 months earlier.
   5. In his written submission Dr. Alwitry had referred to discussions between himself and Mr. Downes regarding the possibility of working together in private practice.  Dr. Alwitry  had,  in  the  end,  concluded  that  this would  not  be financially viable due to rental costs and an arrangement whereby it was alleged he would have to pay Mr. Downes 20% of his private practice earnings for the use of Mr. Downes' "brand name". This arrangement would continue after Mr. Downes retired and until Dr. Alwitry retired. Dr. Alwitry accepted that he had not made it clear to Mr. Downes that he had decided against a private practice  arrangement  as  he  believed  that  his  decision  might  have  been detrimental to their relationship. In addition, he alleged that Mr. Downes had led him to believe that another individual who had been interviewed for the

position offered to Dr. Alwitry had already accepted a private practice deal. In the meantime Dr. Alwitry had decided to see private patients at the Little Grove clinic as this was more cost-effective. It was noted that whilst Mr. McNeela saw patients privately at the Little Grove, it was not intended that they would work in  partnership.  However,  Mr. McNeela's  wife  was  to  be  employed  by Dr. Alwitry to carry out visual field tests. In his submission Dr. Alwitry referred to  2 separate  conversations;  one  with  Ms. K. McNay,  the  administrator  in charge of private practice (in the presence of Ms. J. Gindill, Theatre Sister), whom he alleged had warned: "do not get in the way of Richard Downes' private practice"; and the second with Ms. C. Hockenhull, Clinic Sister (in the presence of an Associate Specialist, referred to as Asim), whom he alleged stated "he (Mr. Downes) is being difficult about your timetable because he is paranoid about his private practice and he says you will be doing refractive surgery". The Board's attention was drawn to hard copies of text messages between the Complainant and Mr. Downes, in which reference was made to a private partnership arrangement. Dr. Alwitry described these exchanges as "amicable and friendly".

6. In his written submission, Dr. Alwitry advised that he had assumed that his involvement in job planning in Jersey would be similar to the role he had played in the UK (the Board's attention was drawn to the process he had engaged in when commencing his post in the UK). The Board had been provided with a copy of a British Medical Association document entitled "A guide to consultant job planning". Dr. Alwitry viewed his role in job planning as being actively involved in arranging a timetable which was safe for patients, utilised resources effectively and delivered the best service. He conceded that he had made "a few requests" to facilitate his travelling back and forth from the mainland until his family could join him. He felt this was reasonable as long as the service and patients did not suffer. Whilst he had queried aspects of the timetable he stated that  he  had  never  refused  to  accept it.  In  fact,  he  contended  that it  was Ms. Hockenhull who had initiated discussions regarding the structure of the timetable. Negotiations between staff (with the exception of Mr. Downes, who was on annual leave) had followed and some restructuring had been agreed. However, Dr. Alwitry was adamant that he had never made demands and believed that he was merely ensuring that the timetable delivered the safest and most efficient care for patients. He had not perceived his requests as being "pushy"  or  "troublemaking".  In  the  final  electronic  mail  message  he  had received from Mr. Downes he (Mr. Downes) had advised that he had tried unsuccessfully to make changes to his own timetable prior to taking up his post and  had  only been able to do so  after being in post for several months. Consequently, Dr. Alwitry alleged that he had not sought to make any further changes to the timetable in the hope that issues could be resolved when he was in post. He had, therefore, been shocked and confused to receive the news that the job offer had been withdrawn.
7. Dr. Alwitry had made contact with the British Medical Association to seek advice in relation to job planning and the number of sessions he was due to work.  The  Association  had  subsequently  contacted  the  General  Hospital regarding these issues. The Complainant alleged that H.M. Solicitor General had conceded that this discussion with the British Medical Association had been a reason for the withdrawal of the job offer. Dr. Alwitry believed that the decision to withdraw the job offer constituted unfair dismissal in accordance

with Article 66 of the Employment (Jersey) Law 2003. The Board's attention was drawn to a number of written exchanges between the Association and the Complainant.

8. It was alleged that Mr. Downes had "problems" with Dr. Alwitry's father, a former colleague at the General Hospital and that this had also been a factor.
9. The Board noted that the Complainant had made a written subject access request to the Law Officers' Department in accordance with the Code of Practice on Public Access to Official Information. He claimed that he had initially been asked  to  await  the  outcome  of  an  investigation  into  the  matter  by H.M. Solicitor General. Dr. Alwitry believed that the investigation conducted by H.M. Solicitor General had been biased and designed to cover up his stated concerns regarding patient safety. The Board noted the contents of a letter dated 5th February 2014, from Sinel Advocates, representing the Complainant, which addressed the contents of H.M. Solicitor General's report.

3. Advocate  Chiddicks  addressed  the  Board  and  began  by  reading  from  a statement prepared by Dr. Alwitry as follows –

Dear Chairman and members,

I am sorry I could not be with you today, however I am unwell at the moment. I thank you for looking at my case.

I was brought up on the Island and was looking forward to coming home to serve the people of the Island who paid for my medical education. I had a teaching hospital permanent consultant job, have written 3 textbooks, 2 novels and published more than 35 articles in the world literature. I did the locum at the hospital 3 times without any problems at all. I had an impeccable reputation and unblemished career.

I was pressurised to give up my job in Derby so I could come to the Island. People knew I had 4 children under 7 and my wife had to give 6 months' notice and yet I agreed to start in 3 months.

The last communication I had was a telephone conversation with the Clinical Director which ended by him telling me was looking forward to seeing me in December.

6 weeks later when I had given up my job and all the removal plans were in place I received a letter out of the blue withdrawing my job offer. This came a week before I was due to start, without warning.

I stayed in bed for the whole week and lost a stone in weight due to not eating and vomiting. No one would talk to me. I telephoned Mr. Riley and he refused to discuss it with me or tell me what I had supposedly done. The other consultant at the hospital, Mr. McNeela was not even told and he only found out when I called him after receiving the letter. He subsequently resigned in protest.

No notice, no warning, no right to appeal, no fair trial and I still do not know exactly why they did this to me. I was left jobless with 4 small children to support. My dreams of coming home were stolen away and to this date I still do not know why. The then Solicitor General sent out a letter stating that he wished to  continue  withholding  my  personal  data  as  otherwise  it  would  trigger litigation or a report to the General Medical Council. How can that be ethical and how can it be just?

Hopefully today will help me get a step closer to understanding why they ruined by career when all I tried to do was protect my patients.

Thank you for your time and attention.

1. Advocate Chiddicks expressed the view that, although the Board had received written submissions, in the absence of Dr. Alwitry and other hospital staff members, it would be very difficult for the Board to get a complete picture. With regard to the report which had been prepared by H.M. Solicitor General, Advocate Chiddicks pointed out that witnesses had been interviewed in private and Dr. Alwitry had not been permitted to respond or challenge any of the statements made and, as a result, felt he had been kept very much in the dark. It was hoped that the subject access request might shed more light on the matter.
2. Dr. Alwitry was of the view that the SEB had acted unjustly and contrary to the principles of natural justice. He disputed the findings of the Beal report and the report prepared by H.M. Solicitor General. Advocate Chiddicks contended that it was apparent from documentation included within the Respondent's bundle that there had been deficiencies in the process. He referred the Board to the terms and conditions of service for consultant medical and dental staff and, in particular sections –

3.1.1  Job planning – a partnership approach which was to be adopted in respect of the same. It was noted that the manager and the clinician were required to prepare a job plan which would be discussed and agreed with the consultant.

3.9.1  Resolving disagreements over job plans – it was noted that if it was not possible for a consultant and a manager to reach agreement on a job plan the consultant could refer to the appeals process, as set out in Schedule 4 of the terms of conditions of service.

1. Appeals – where it was not possible to agree a job plan or a consultant disputed a decision, an appeals process was available.

3. Grounds for termination of employment – it was noted that should the application of any disciplinary or capability procedures result in the decision to terminate a consultant's contract of employment he or she would be entitled to an appeal.

4. The Board's attention was drawn to Dr. Alwitry's Curriculum Vitae and a number of references and personal testimonials he had included within his submission.

4. Advocate Chiddicks referred to a letter dated 8th February 2013, addressed to Dr. Alwitry  from  Mr.  S.A.  Vernon,  DM.  FCRS.  FRCOptom.(hon.)  DO., Hon. Professor  of  Ophthalmology  and  Consultant  Ophthalmic  Surgeon specialising in Glaucoma, University Hospital, Nottingham. It was understood that Dr. Alwitry had sought Mr. Vernon's opinion on various issues concerning discussions with his future employer in Jersey. In the final paragraph of his letter Mr. Vernon stated –

I commend you for taking the time and effort prior to your appointment to organise your timetable in a manner that most benefits the service and your patients. This is certainly the approach that one would expect of a specialist who had been a consultant for a few years, as you have. In my view all of your requests have been logical and well considered and should be welcomed by your future colleagues, both medical and managerial. Indeed such pre-emptory discussions involving job planning are an important part of taking up a new consultant position.

5. The  Board's  attention  was  drawn  to  a  letter  dated  13th  February  2013, addressed to Dr. Alwitry from Mr. A.W. Kiel, BMed. Sci. B.M.B.S. FRC Opth., Glaucoma Consultant, Ipswich Hospital. Mr. Kiel also stated that it was good practice to sort out a timetable prior to taking up a post, rather than cause logistical and organisation difficulties by changing a timetable when clinics etcetera had already been booked. Mr. Kiel went on to state –

You have a duty of care to the patients and, thus you are obliged to raise concerns about logistics and timetabling which you feel could compromise patient care or deliver a suboptimal service. This should be encouraged by your clinical and managerial colleagues and not condemned.

6. The Board's attention was drawn to a letter dated 21st July 2013, addressed to Dr. Alwitry  from  Mr. A.J. Sidebottom,  BDS.,  FDSRCS.,  MBChB., FRCS. (OMFS.),  Consultant  Facial  and  Oral  Surgeon,  The  Park  Hospital, Nottingham. Mr. Sidebottom confirmed that job planning was accepted practice in the United Kingdom. Mr. Sidebottom had concluded that, based on the electronic mail exchanges –

The process of job planning has broken down due to inflexibility and lack of understanding of best medical practice following a period of constructive discussions  by  Dr. Alwitry.  This  breakdown  seems  to  be  entirely  due  to Mr. Downes lack of flexibility in the job planning process and subsequent failure to involve a third party in this process to try to resolve issues.

7. The  Board's  attention  was  further  drawn  to  a  report  prepared  by Mr. M.R.K. Matthew,  Consultant  Ophthalmic  Surgeon,  Chesterfield  Royal Hospital NHS Foundation Trust in which he had reviewed the electronic mail exchanges  between  the  Complainant  and  the  Respondent  and  considered Dr. Alwitry's anxiety concerning post-operative care plans to be reasonable.
8. Advocate Chiddicks asked the Board to consider the response of the SEB to Dr. Alwitry's complaint. It was alleged that Dr. Alwitry's claims about patient safety were an attempt at rationalising, after the event, the situation in which he found himself, which was not backed up by evidence. It was clear from the

chain of electronic mail messages that the issue of patient safety had been raised by  Dr. Alwitry  as  early  as  September 2012,  and  could  not,  therefore,  be construed as an afterthought. This issue did not appear to have been addressed and the Board noted the contents of an electronic mail message addressed to Dr. Alwitry from Mr. R. Downes in which he (Mr. Downes had concluded by stating –

I would finally advise/warn that making too many demands at this stage of your appointment is unlikely to bode well for your future relationships within the organisation!

9. Advocate Chiddicks contended that there appeared to be 3 separate areas of process where things had gone seriously wrong, as follows –

• the start date – this had not been discussed at interview, but Dr. Alwitry had made it clear on his job application that he required a 6 month notice period. In his report, H.M. Solicitor General had recognised that: "there were notable defects in the recruitment process that allowed the conflict to go unnoticed  by  the  hospital  until  after  the  job  had  been  offered  to Dr. Alwitry".
• job planning – proper procedure did not appear to have been followed in this respect and the approach fell well below recognised standards.
• the response to the approach to the British Medical Association – the Health and  Social  Services  Department  had  wrongly  assumed  that  a  formal complaint  had  been  made  by  Dr. Alwitry  and  had  failed  to  properly investigate this matter. The Board noted that Dr. Alwitry had sought to clarify  a  discrepancy  in  the  number  of  programmed  activities  which appeared on his timetable and those for which he was contracted to work. In his report, H.M. Solicitor General had noted that there were a number of reasons for the decision to terminate the contract, of which the B.M.A. matter was just one. H.M. Solicitor General further noted that whilst the decision had not been implemented when Dr. Alwitry had contacted the B.M.A., management had already expressed a collective view that the employment contract should be withdrawn.

4. Summary of the written case of the States' Employment Board

1. It was stated that Dr. Alwitry had been offered the position of Consultant Ophthalmologist  on  1st August 2012,  which  he  had  formally  accepted  on 21st August 2012. This was a new position which had been created following a successful  bid  for  extra  funding  as  a  response  to  growing  pressure  on Ophthalmology  waiting  lists.  Dr. Alwitry  had  been  due  to  start  work  on 1st December 2012. It was alleged that from 1st August – 13th November 2012, there had been a series of discussions between the Complainant and staff at the General Hospital which were considered to be unusual and challenging. On 13th November 2012, management at the General Hospital had concluded that the relationship with Dr. Alwitry had broken down and was viewed as being dysfunctional. Consequently, the employment contract had been terminated by letter on 22nd November 2012.

2. In its written submissions, the SEB denied Dr. Alwitry's claims and allegations. It was stated that the offer of employment had been withdrawn on the following grounds –

• the attitude and behaviour displayed in relation to multiple aspects of the role;
• demonstrable evidence of a dysfunctional relationship with the Clinical Director (Mr. Downes) and other senior medical and management staff; and,
• a loss of trust and confidence between the respective parties, resulting in any employment relationship being irreparably damaged.

3. The SEB relied upon 3 independent reviews in support of the decision to terminate Dr. Alwitry's employment. Advocate Ingram encouraged the Board to attribute full weight to the conclusions in those reports, as they were the products of third party evidence and not simply an individual's view. It was stated  that Dr. Alwitry had originally alleged  that the job offer had  been withdrawn  as  a  result  of  private  practice  disputes  (which  was  refuted). Dr. Alwitry's  claims  about  patient  safety  were  viewed  as  an  attempt  at rationalising the situation he found himself in, after the event. He had first raised this issue of patient safety on 7th October 2012, in an electronic mail message addressed to the Clinical Director. His final conversation with the Clinical Director had been on 10th October 2012, after which he had not spoken to senior management. H.M. Solicitor General's report (included within the submission) noted that the Complainant had not raised patient safety concerns with him during interviews. H.M. Solicitor General had concluded that Dr. Alwitry's conduct had led to the breakdown in the relationship. In particular, it was alleged that Dr. Alwitry had advised H.M. Solicitor General that he had not wished to operate on Fridays because he wanted to be with his family in the UK at the weekend (until such time as his family relocated to Jersey in the summer of 2013). The report had concluded that tensions had arisen because Dr. Alwitry had applied for the job in Jersey in the summer of 2012, but did not intend for his wife and children to join him in the Island until the summer of 2013. H.M. Solicitor General took the view that Dr. Alwitry wanted a start date and timetable which meant he was able to spend the maximum amount of time in the UK until the summer of 2013. In contrast, the General Hospital required a new consultant to start full-time as soon as possible. There had been a conflict between these 2 positions, and this had resulted in repeated disagreements about a number of issues from August to November 2012.
4. It was alleged that Dr. Alwitry had asked a theatre nurse to move obstetrics and gynaecological  surgical  procedures  to  a  Friday,  even  though  he  had acknowledged that patients who had undergone these kind of procedures were more likely to develop complications following surgery than those who had eye surgery. This request had been made whilst the Clinical Director was on annual leave. The theatre nurse had declined to assist Dr. Alwitry and had referred his request to management.

5. With regard to the approach to the British Medical Association, it was noted that H.M. Solicitor General had seen the Association's records and patient safety issues had not been identified. The Association had not wished to become involved in the matter.
6. An independent review of the decision to withdraw the contract of employment had been commissioned by Mr. J. Richardson, Chief Executive of the States, and  a  report  subsequently  prepared  by  Mr. P. Beal,  Human  Resources Consultant. This report had been provided with the written submission. In common  with  the  report  of  H.M. Solicitor  General,  the  Beal  report  had concluded that whilst some procedural aspects had been unsatisfactory, even if this had not been the case the outcome would have been the same. Prior to the commissioning  of  this  report,  the  Chief  Executive  of  the  States  had commissioned a separate report to establish whether there would be any merit in engaging in mediation between the parties as a possible way forward. A report prepared by Ms. M. Haste, CMP Resolutions, in this connexion had been included  within  the  written  submission.  Both  H.M. Solicitor  General  and Ms. Haste had concluded that Dr. Alwitry had been reluctant to accept the part he had played in the matter.
7. In  terms  of  the  process  by  which  the  contract  had  been  terminated, H.M. Solicitor General had noted that there had been a failure to properly investigate and understand an electronic mail message dated 12th November 2012, from Dr. Alwitry. Instead, an assumption had been made about the contents of the electronic mail message and that assumption was used as a reason for the decision to terminate the contract. Whilst there was no legal obligation to do so, H.M. Solicitor General took the view that management at the General Hospital should have provided Dr. Alwitry with an opportunity to respond to criticisms prior to terminating the contract. Finally, H.M. Solicitor General had commented on the fact that Dr. Alwitry had been advised of the decision to withdraw the offer of employment very late in the day and this did not  reflect  well  on  the  General  Hospital.  However,  in  spite  of  the aforementioned procedural issues, H.M. Solicitor General was of the view that even if an appropriate procedure had been followed the outcome would have been the same. This view was based on interviews with the Complainant and the  British  Medical  Association  records,  which  had  shed  light  on  the Complainant's behaviour from 10th October 2012 onwards.
8. The Board noted that the Complainant had initially decided to pursue a claim for unfair dismissal with the Jersey Employment Tribunal. The claim had been withdrawn by Dr. Alwitry in a letter dated 4th December 2012. The reasons given were, inter alia, the Tribunal had failed to follow due process; the Deputy Chair was conflicted; and, that he (Dr. Alwitry) would not have a fair hearing. Dr. Alwitry  had  subsequently  pursued  an  application  in  the  Royal  Court concerning a data subject access request under the Data Protection (Jersey) Law 2005.
9. The SEB resisted all claims and allegations made by Dr. Alwitry.
10. The Board heard from Advocate L. Ingram, who confirmed that the report prepared by H.M. Solicitor General had been written and perfected on the basis of evidence from witnesses and was not merely the opinion of the author.

Advocate  Ingram  referred  the  Board  to  paragraph 185  of  H.M. Solicitor General's report in which he stated –

I have interviewed Dr. Alwitry. I am satisfied that even if he had been afforded an opportunity to respond to the criticism of him, the outcome would have been the same. I have found much of his evidence to be difficult to follow and contrary to the contemporaneous records of this case. I was left none the wiser by his explanations for his behaviour from 10th October onwards and it is only the BMA records that have shed light on that period of the case. Dr. Alwitry does not appear to accept that his behaviour is a real cause for concern.

11. The  Board  was  keen  to  establish  exactly  which  aspects  of  Dr. Alwitry's behaviour were "a cause for concern", and Advocate Ingram directed the Board to the various electronic mail exchanges. The Board also wished to establish whether Dr. Alwitry's approach to the B.M.A. had played a part in the decision to withdraw the contract. Advocate Ingram advised that this was not the case as the decision had already been made at this point. The Board noted, in particular an electronic mail message dated 12th November 2012, at 16:42 from a member of staff at the B.M.A. to Mr. B. Jones, Medical Staffing Manager, asking if she could call Mr. Jones to discuss: "a delicate issue surrounding Dr. Alwitry" and advising that Dr. Alwitry: "had run into a few problems with the consultant lead". At 16:55, Mr. Jones sent an electronic mail message to Mr. T. Riley (copied  to  Mr. J. Shoebridge)  asking:  "where  are  we  with  Dr. Alwitry?" Mr. Riley responded at 16.58 p.m., stating: "I think everyone is agreed that we formally  withdraw  the  job  offer". Advocate  Ingram  advised  that,  in  this particular respect, H.M. Solicitor General's report was incorrect in that the approach to the B.M.A. was not a factor in the decision-making process. The Board was referred to a note of a meeting held on 13th November 2012, in Mr. A. McLaughlin's office to discuss Dr. Alwitry. Present at the meeting were: Messrs. McLaughlin, Managing Director, M. Siodlak, Medical Director and T. Riley, HR Director. It was not clear whether Mr. A. Luksza, Medical Director, had been present, as there was a question mark next to him name. The following had been recorded –

those present agreed that, although regrettable, a withdrawal of employment was required. The decision was taken not to discuss the withdrawal of the offer of employment with Mr. B. McNeela at this stage.

12. With regard to the issue of timetabling/job planning, Advocate Ingram drew the Board's attention to an electronic mail message dated 9th October 2012, from Mr. Downes to Dr. Alwitry, in which this issue was discussed. The Board noted that in the e-mail whilst Mr. Downes stated that the timetable (produced on 24th September 2012) would be implemented in February 2013 (when Dr. Alwitry had  agreed  to  commence  work  on  a  full  time  basis)  in  the  penultimate paragraph he had also stated that if there were any further queries/questions/ concerns in relation to the timetable, Dr. Alwitry should contact Mr. Downes directly. Advocate Ingram stated that this clearly demonstrated that lines of communication remained open. The Board also noted that in the same e-mail Mr. Downes stated –

We cannot provide you with what is not available. Further, you must understand that your requirements have to fit in with everyone else. I have tried my utmost,

using what influence I have, to get the best possible arrangements for yourself but would remind you that "last man in" must accept that compromise at this juncture is prudent.

13. The Board suggested that the above statement indicated that a clear line was being drawn in respect of the timetable. However, Advocate Ingram pointed out that this electronic message followed a series of messages from Dr. Alwitry to various staff members on the same issue whilst Mr. Downes was on annual leave. That was the context. Following this Dr. Alwitry spoke to Mr. Downes on the telephone on 10th October 2012 (billing records confirmed that the conversation lasted 8 minutes). Dr. Alwitry recalled that he had expressed a desire to "move forward" and that reference had been made to the issue of private practice. Dr. Alwitry was of the view that the telephone conversation had  ended  on  a  pleasant  note.  Mr. Downes  had  no  recollection  of  this conversation.
14. Turning his attention to the issue of the start date, Advocate Ingram referred the Board to paragraph 20 of H.M. Solicitor General's report, in which he stated –

In my view the tensions in this case arose only because Dr. Alwitry applied for a job at Jersey hospital in the summer of 2012 but did not intend for his wife and young children to join him in Jersey until the summer of 2013. Dr. Alwitry, having been offered the job on 1st August 2012, wanted a start date and timetable that meant he was able to spend the maximum amount of time in the United Kingdom until the summer of 2013.

15. Advocate Ingram argued that this desire to be with his family appeared to be the primary motivation for manipulating the timetable, and that patient safety was not a factor. Furthermore, Mr. Downes alleged that Dr. Alwitry had not mentioned  the  6 months'  notice  period  during  informal  pre-interview discussions, in spite of the fact that Mr. Downes had made it clear that there was a pressing need for the appointment to be taken up as soon as possible. Mr. Riley added that Dr. Alwitry's request for a delayed start date was not disputed but that it had  been made clear in the verbal job offer that the Department wanted the successful candidate to start within 3 months. Mr. Riley was unclear as to whether this requirement had been made in writing, but advised that Mr. McClaughlin was convinced that Dr. Alwitry had agreed to start in November 2012. However, the Board noted the contents of an electronic mail message dated 1st August 2012, from Dr. Alwitry to Ms. J. Nicholson, Medical Secretary, in which Dr. Alwitry advised that he did not know when he was starting. The Board referenced another e-mail exchange dated 2nd August 2012, between Dr. Alwitry and Mr. A. Thompson, Consultant Anaesthetist (and a member of the interview panel). It was noted that Mr. Thompson asked if Dr. Alwitry was intending to take  up his  post around October/November, suggesting that he was unaware of Dr. Alwitry's desire for a 6 month notice period. The Board also had regard to an electronic mail message dated 8th August 2016, from Mr. Downes to Dr. Alwitry, asking the latter to contact the former to "organise a start date".
16. In terms of the contract of employment which had been issued, Mr. Riley stated that there had been a "torrent" of telephone calls and electronic communications prior to the contract being issued. On or around 7th or 8th August 2012, during

a telephone call with Dr. Alwitry, Mr. Riley understood that Mr. McLaughlin had  made  his  concerns  clear  regarding  what  he  perceived  as: "a  lack  of compromise on the part of Dr. Alwitry", and advised that he was considering withdrawing the offer of employment and reverting to the "second choice" candidate. There was no written record of this or other telephone conversations and whilst Mr. Riley accepted that it was good practice to make a record, he stated that this was probably as a result of the volume of telephone calls. Mr. Riley alleged that Dr. Alwitry's response to Mr. McLaughlin's comments was to contact a member of staff in the Human Resources Department and request that his contract be issued. It was alleged that Dr. Alwitry advised that staff member that he was acting on Mr. McLaughlin's instructions. (The Board noted that certain human resources procedures, including the process for issuing contracts of employment, had now been altered.) Mr. Riley also alleged that Dr. Alwitry threatened to seek legal advice and go to the media if the offer of employment was withdrawn. On 10th August 2012, Mr. McLaughlin wrote to Dr. Alwitry, advising that whilst it had been noted in his application that he could not start for 6 months, it had been hoped that he would start sooner (in mid-November) "given that the possibility of a delayed start date was not discussed with the Department prior to, or indeed during your interview". The letter concluded by stating that unless Dr. Alwitry commenced employment by 1st December 2012, the job offer would be withdrawn. The Board noted that Mr. McLaughlin's  letter  did  not  make  reference  to  the  prior  telephone conversation between Messrs. McLaughlin and Alwitry. The Board's attention was  drawn  to  an  e-mail  dated  10th  August  2012,  from  Dr. Alwitry  to Mr. McLaughlin, in which he advised that he had received Mr. McLaughlin's letter and fully understood the position. Dr. Alwitry went on to explain that it was never his intention to be difficult and that there had never been any mention of a November start date. He stated: "not one person mentioned or discussed a start  date  until  after  the  interview –  all  any  of  the  literature  said  was winter 2012, which I erroneously presumed was any time up to Spring 2013!" Dr. Alwitry then offered to commence a 3 day working week from 1st January 2013, doing 6 clinical sessions from Monday to Wednesday and then working full-time from 11th February. Mr. Riley contended that this suggestion was calculated, as Dr. Alwitry would have known that there was no capacity in the theatre from Monday to Wednesday. The Board considered an e-mail dated 13th August 2012,  from  Dr. Alwitry  to  Mr. Downes,  in  which  Dr. Alwitry expressed surprise at the stance taken by Mr. McLaughlin but made it clear that it was his intention to commence a 3 day working week from 1st January 2013. Subsequently,  on  14th August 2012,  Dr. Alwitry  e-mailed  Mr. Downes, advising that he had sight of the waiting times spreadsheet and did not believe that his starting work in February 2013, would have a detrimental impact on the service. Mr. Riley confirmed that this type of behaviour was viewed as unusual in the circumstances. He also advised that references made by Dr. Alwitry to alleged  conversations with Ms. A. Body were  refuted by the latter as  she believed she had been misrepresented. Mr. Riley believed that there had been a pattern of misrepresentation throughout.

The Board adjourned at 1:00 p.m. and reconvened at 2:00 p.m.

17. Mr. Riley referred to suggestions that the withdrawal of the job offer had been a "bolt from the blue", and that Mr. McNeela had resigned as result of the withdrawal of Dr. Alwitry's contract. Mr. Riley stated that evidence existed to refute the former, and that it was well know that Mr. McNeela intended to leave long before this issue had arisen.

Mr. Riley advised the Board that he wished to read from a statement he had prepared, as follows –

I, Tony Riley am Human Resources Director for the Health and Social Services Department. I joined the States of Jersey on 1st September 2011, and began working at the Jersey General Hospital on the same date.

It was my duty to advise the senior managers and doctors at the Hospital as part of their consideration of withdrawing a job offer that had been made to Dr. Alwitry on 21st August 2012.

In order to provide that advice I drew on my 20 years' experience of being a senior trade union officer and Executive Hospital HR Director and enlisted further guidance and advice from the States Law Officers' Department.

The agreement of a start date for Dr. Alwitry to commence his full time post was  an  immediately  contentious  issue  that  involved  a  series  of  intense exchanges by telephone and e-mail between Dr. Alwitry and senior hospital leaders. At one point, with the hospital leadership suggesting that the job offer could be withdrawn Dr. Alwitry inappropriately approached a junior employee and persuaded him to issue a contract of employment which Dr. Alwitry then used to attempt to strengthen his bargaining position. By this stage Dr. Alwitry was also threatening to invoke lawyers to secure his aims. These two steps were considered to be extraordinary examples of behaviour in this context.

A much revised start date of 3rd December 2012, was eventually agreed and the contract was re-issued and signed by Mr. Oliver Leeming, Medical Staffing Officer on 21st August 2012, and by Dr. Alwitry on 24th August 2012.

No sooner was the start date resolved than Dr. Alwitry began to engage in an exceptionally  prolonged  and  disingenuous  debate  by  e-mail  and  frequent telephone calls, seeking to change his job plan and timetable to suit his personal circumstances.  This  involved  making  approaches  to  a  large  number  of individuals – some inappropriately junior, and frequently subverting what were often thought to be agreed compromise positions.

A particularly serious and damaging event was when Dr. Alwitry deliberately falsely claimed that Mrs. Angela Body, the Director of Operations had stated that there was no need for a new consultant and that there was no problem with waiting lists. As Mrs. Body is one of the most respected and distinguished nurses and managers in Jersey, this blatant lie represented utterly unacceptable behaviour by Dr. Alwitry.

Prior to Dr. Alwitry taking up employment on 3rd December 2012, the three most senior doctors and two most senior Hospital managers were, based on these and other examples, inclined to withdraw the job offer that had been made

to  Dr. Alwitry  based  on  their  unanimous  view  that  he  had  repeatedly demonstrated actions, attitudes and behaviours that were so extreme and so unacceptable as to represent a fundamental loss of trust and confidence so as render him unsuitable to be employed.

It should be noted that the doctors and managers who made this decision had between them decades of experience of appointing senior doctors who would often present with challenging behaviours and demands but that all agreed that Dr. Alwitry's was extraordinary and extreme, beyond any they had seen before. On or about 23 October Mr. McLaughlin and Mr. Siodlak, together with their senior colleagues and I agreed to contact the States' Law Officers to be assured that the proposed action was legitimate.

Following  advice  from  the  Law  Officers'  Department  and  myself  the management and medical leadership team, after seeking a relatively fresh pair of eyes from Dr. Luksza, another Medical Director with minimal involvement in the process so far, agreed unanimously to withdraw the offer of employment that had been made to Dr. Alwitry before the proposed employment start date. This ensured that the 3 most senior doctors, two most senior managers and myself were in accord. It was agreed that we would secure political support and ongoing legal advice before proceeding.

On 12th November I e-mailed the Head of Medical Staffing confirming that there  was  unanimous  agreement  to  withdrawing  the  job  offer.  On 13th November, the senior group reconvened and were informed that following an  unclear  e-mail  contact  from the  BMA late  on the  12th,  a subsequent telephone conversation on the morning of the 13th identified that Dr. Alwitry was seeking his union's support to lodge a complaint or grievance against Mr. Downes. Whilst it is not unusual for a doctor to seek professional advice from his union about pay and rotas it was astonishing to Health and Social Services  Department  doctors  that  this  would  happen  in  this  way,  at  this juncture. This undoubtedly further assured the group that they had come to the right decision and that the decision was further validated. To that extent this was "a factor".

It was agreed that I would share our position with the Chief Executive Officer of the Health and Social Services Department, the ministerial team and Human Resources Director for the States of Jersey, to be followed by the States' Employment Board. The decision was unanimously supported by all of them.

Over  the  course  of  21/22 November  the  full  membership  of  the  States' Employment Board were briefed and consulted and supported the immediate withdrawal of the job offer.

This was done by letter dated 22nd November 2012, and signed by me, thereby terminating any contractual relationship, to the extent that it may have existed, between  Dr. Alwitry  and  the  SEB.  The  same  letter  offered  appropriate compensation as advised by Law Officers.

18. The Board discussed the process, as set out above, with Mr. Riley, and noted that in recent years issues had arisen with 2 other consultants employed by the Health and Social Services Department. In one case disciplinary action had been taken and the individual had subsequently resigned. Mr. Riley described the other case as "having gone on for years" until the individual eventually retired. In both cases Mr. Riley advised that he would have recommended dismissal. He went on to state that it was not unusual in the UK for job offers to be withdrawn. In Dr. Alwitry's case, advice had been sought as to whether the contract had been enacted and it had been concluded that it had not. The withdrawal of the job offer was, therefore, the recommended route. In response to a question as to whether this was an appropriate way for a public authority to act, Mr. Riley stated that he believed that, in this particular case, this was the correct approach. He believed the circumstances to be "exceptional". It was understood that a senior officer from the Law Officers' Department had briefed the States' Employment Board on the recommendation to withdraw the contract of employment. The absence of a formal meeting with Dr. Alwitry to explain the concerns which were being expressed was highlighted, and Mr. Riley stated this this would only have happened if he had been in post; in other words if he had commenced employment at the General Hospital. It was pointed that it could be perceived that the Complainant had been denied the right to natural justice. The Board acknowledged that it was also likely that Dr. Alwitry had, by this time, tendered his resignation from his post in the UK, as it appeared that he was unaware that the job offer was going to be withdrawn. The Board questioned whether the process which had been followed could be described as fair and reasonable.
19. It  was  noted  that,  following  the  decision  to  withdraw  the  contract  of employment, a candidate who had come a very close second to Dr. Alwitry had been offered the position. However, following some political debate the offer had been suspended and the post had remained unfilled for some time thereafter. Mr. Riley could not be absolutely sure but he thought that the services of a locum had been secured on or around February 2013.
20. The Board asked Mr. Riley to comment on references by Dr. Alwitry to the clinical risks which he believed were associated with operating on a Friday afternoon. Mr. Riley stated that there would only have been a risk if Dr. Alwitry was out of the Island over the weekend and, therefore, unable to see patients. In addition, it was the view of medical professionals that moving obstetrics and gynaecological procedures to a Friday afternoon (as suggested by Dr. Alwitry) would have posed a much greater risk to patient safety due to the complexity of these procedures. Mr. Riley stated that Dr. Alwitry's concerns regarding patient safety were exaggerated and were merely a "smoke-screen". The Board referred to  various  letters  from  medical  professionals  which  appeared  to  support Dr. Alwitry's views. Mr. Riley dismissed these, alleging they had been written by Dr. Alwitry's "mates". He did, however, acknowledged that it was usual for there to be a certain amount of "horse-trading" around theatre slots. Mr. Riley explained that, in Jersey, consultants were required to work on a Saturday morning on an on-call basis without pay, but that Dr. Alwitry wished to be paid for this. Mr. Riley confirmed that this requirement had not been included in the contract of employment, but felt the Dr. Alwitry should have known this was the case as he had previously worked as a locum in the General Hospital. His father had also worked in Jersey as a consultant ophthalmologist.

21. The Board considered comments contained within electronic mail messages dated  13th  and  23rd  October  2012,  from  Mr. M. Siodlak.  In  his  e-mails, Mr. Siodlak had stated: "I think we should sack this bloke before he gets here" and  "this  appointment  will  be  a  disaster  and  we  should  withdraw  his (Dr. Alwitry's) offer of a job before he gets here. Mark my words he will make XX seem like a walk in the park!" The Board asked whether it could be assumed from these messages that Mr. Siodlak was driving the decision to withdraw the job offer. Mr. Riley stated that this was not the case. The Board noted that whilst an  internal  meeting  had  been  held  on  23rd October 2012,  to  discuss withdrawing the offer, no formal record had been produced. The Board noted an e-mail dated 24th October 2012, from Mr. Downes to Messrs. Riley and McLaughlin, stating that Dr. Alwitry had been in the Island on 22nd and 23rd October  2012,  but  had  declined  to  discuss his  concerns  with  senior  staff members. Mr. Riley was asked if he had checked with Dr. Alwitry that he did not wish to discuss his concerns with staff whilst visiting the Island. Mr. Riley stated that he had not as he was: "not in the habit of checking-up on senior colleagues". Mr. Riley added that the electronic messages which had been submitted formed  only a  small part of a  bigger story, as there had  been numerous telephone calls from the Complainant to a number of staff members. Unfortunately, no records of these telephone conversations had been made.
22. The Board decided to adjourn and reconvene at 9:00 a.m. on 17th March 2016. --------------------------

The Board reconvened at 9:00 a.m. on 17th March 2016, in Morier House.

5. The Board reconvened to hear representatives of both the Complainant and the Respondent sum up.

1. In light of the fact that a media representative had been present at the hearing on 16th March 2016, Mr. Riley asked to comment on the discussions which had taken place the previous day in relation to the clinical risks which Dr. Alwitry believed  were associated with operating on a  Friday afternoon. Mr. Riley outlined the role of the relevant Royal College in the context of the recruitment process, which involved job descriptions, job plans and timetables for specific roles being sent to the Royal College for approval. In this particular case the job plan included the Friday operating slot, and this had been approved. Mr. Riley stated that whilst a doctor may prefer not to work on a Friday afternoon, it was necessary  in  order  to  reduce  waiting  lists.  In  terms  of  the  number  of programmed activities undertaken by doctors in Jersey, the Board was advised that this had been capped at 10 (as part of a collective bargaining agreement), but in practice doctors were required to carry out 11½ programmed activities. When asked if Dr. Alwitry had been made aware of this, Mr. Riley stated: "he is a Jersey boy and his father worked at the hospital so he would have known".

The Board's attention was drawn to the specific wording of the terms and conditions of service for consultant medical and dental staff, which stated –

Non-emergency work after 7.00 p.m. and before 7.00 a.m. during weekdays or at weekends will only be scheduled by mutual agreement between the consultant and  his  or  her  manager.  Consultants  will  have  the  right  to  refuse  non- emergency work at such times. Should they do so there will be no detriment in relation to pay progression or any other matter.

2. The Board was advised that private practice arrangements in Jersey differed from those in the UK. Mr. Riley was asked about Dr. Alwitry's claim that Mr. Downes had stipulated that Dr. Alwitry pay Mr. Downes 20% of his private practice earnings for the use of Mr. Downes' "brand name". Mr. Riley informed the Board that Mr. Downes refuted this claim and was considering taking legal action. When asked about negotiations between clinicians on private practice issues, Mr. Riley advised that he was not involved in such discussions.
3. In terms of the internal meetings which were held with senior management, both in the context of this matter and other operational matters, the Board noted that it was not normal practice for a written record of such meetings to be produced.
4. On the related matter of the documents submitted, the Board made it clear that full and frank disclosure of all relevant material was absolutely essential, and that a dim view would be taken of any attempt to withhold any information pertaining to this matter. Indeed, such action could lead to a separate complaint. It was acknowledged that certain documents had not been made available as a result of the pending subject access request.
5. The  Board  invited  Advocate  Ingram,  on  behalf  of  the  Respondent,  to address/focus on the following issues in his closing statement –

• the process in terms of the job advertisement, which did not appear to reflect what was required of an individual in the Jersey context, with specific reference to differences between practices in the UK and Jersey;
• factual issues surrounding the start date;
• whether Dr. Alwitry was merely doing what was required of him under his  contract,  with  specific  reference  to  job  planning/programmed activities;
• the decision-making process in relation to the withdrawal of the job offer;
• the absence of proper record-keeping;
• the potential for a conflict of interest over private practice;
• the  question  of  whether  a  public  authority  should  take  away  an individual's livelihood without affording the right of an independent review;
• whether the letter to the States' Employment Board accurately reflected the position and whether the Board was properly informed;

• whether the SEB should have relied entirely and solely on the views of senior officers who were directly involved;
• whether it was appropriate for the Solicitor General to investigate his own department's advice;
• whether  the  H&SSD  should  be  more  proactive  in  engaging  with individuals. Based upon the paperwork, there was an appearance of unfairness;
• the Board's main focus was the decision-making process of a public authority.

6. The Board invited Advocate Chiddicks to deliver his closing statement as follows (this statement was subsequently submitted in writing due to time constraints) –

1. There are clearly a lot of facts and issues not agreed between Dr. Alwitry and the Respondent. Save for Mr. Riley's oral evidence, the evidence that was before the Panel related to the documentation provided by both parties. These closing submissions are based on Mr. Riley's evidence and the documentation.
2. Mr. Riley's  evidence  appeared  to  be  that  the  decision  taken  to terminate Dr. Alwitry's contract was premised on correspondence and communications he had with hospital staff. The communications covered two main areas: start dates and job planning.

Start dates

3. Dr. Alwitry  acted  completely  properly  and  appropriately  with  regard  to communications about his start date.
4. It is clear from Mr. Riley's evidence that the question of the start date was not discussed at the interview stage. This is notwithstanding that Dr. Alwitry had been full and frank on his application form and clearly stated that his notice period was 6 months.
5. Clearly if there was an issue with Dr. Alwitry's notice period it was incumbent on the interviewing panel to raise their concerns at that stage and identify their requirements in respect of a start date. The interviewing panel did not raise any concern. In the circumstances, Dr. Alwitry, or any reasonable person, could rely on what was stated in on the application form and consider it acceptable.
6. The  Respondent  must  accept  that  the  failure  to  discuss  their  start  date requirements was down to those involved in the interview process and no blame can be attached to Dr. Alwitry.
7. An issue over Dr. Alwitry requesting and being sent his contract is another example of an internal failure within the Hospital which they seek to unjustly lay at the feet of Dr. Alwitry. It is completely reasonable for a candidate who has been told they have been successful to want to look at and request a copy

of the terms of the contract being proposed. There is nothing wrong with this. To the contrary Dr. Alwitry was doing a reasonable and sensible thing and making sure that the terms of his potential contract were acceptable; clearly this should be done sooner rather than later because if they were not acceptable the Hospital could act accordingly.

8. Mr. Riley referred to a "torrent" of telephone calls and e-mails about the start date and suggested that this was an example of difficult behaviour and that serious consideration was being given at that stage to withdrawing the job offer.
9. This is denied by Dr. Alwitry and there is simply no evidence or particulars put forward to substantiate such allegations. In the absence of such evidence the adverse inference should be drawn.
10. For example, if serious thought was being given to not pursuing matters with Dr. Alwitry then one would expect staff to be building a case for seeking approval to properly terminate the relationship with Dr. Alwitry in line with the contractual  procedure  and  pursue  other  candidates  or  undertake  the recruitment  process  again.  The  Hospital  is  well  resourced  in  its  human resources  departments  has  experienced  members  of  staff  (as  Mr. Riley frequently gave evidence to). In these circumstances there is a reasonable expectation that where thought is being given to moving away from a set plan that there would be a case prepared for doing so that would include a proper paper trail of alleged communications, meetings, discussions and reasoning. There  are  no  file  notes  of  any  communications  and  no  records  of  any discussions. Not only are there no file notes but there are no telephone records at all which may indicate how many calls were made, when they made and how long they lasted.
11. Another example is that no member of staff spoke to Dr. Alwitry about issues or concerns they had. Either the concerns were not severe or serious (or even in existence) and there was no need to speak to Dr. Alwitry, or the concerns were serious but the Hospital failed to relay those concerns to Dr. Alwitry. If the latter, then the lack of engagement was a serious procedural error.
12. In the Solicitor General's report at paragraphs 55 to 60 there is reference to evidence being given to the Solicitor General about a telephone conversation that took place between Mr. McLaughlin and Dr. Alwitry. It appears to be Mr. McLaughlin's  evidence  that  this  conversation  lasted  40 minutes. Dr. Alwitry's evidence was that it lasted 5 minutes or so. There is clearly a big difference between a 5 minute conversation and one that lasts 40 minutes. Mr. McLaughlin was unable to provide any evidence of the duration whereas Dr. Alwitry was able to support his assertion which the Solicitor General proceeded with. This does more than just cast serious doubt over the allegations against Dr. Alwitry, it contradicts them.
13. There are simply no specifics, particulars or supporting evidence to back up what Mr. Riley says he was told. In the circumstances the Panel should ignore Mr. Riley's unsupported hearsay evidence of an alleged "torrent" of telephone calls. Further and in any event, the Panel has before it written documents which show a very different picture to Mr. Riley's evidence. This documentation should be given more weight and relied upon.

14. The written documentation shows a completely reasonable, logical and polite number of exchanges regarding the start date which was ultimately agreed. There can be no criticism of Dr. Alwitry or his position in that correspondence.
15. There is a distinction between decisions and actions being taken at this stage (i.e. prior to Dr. Alwitry signing his contract) and after Dr. Alwitry has signed his contract. However there does not appear to be any doubt that some of the views wrongly formed by Hospital staff regarding start dates featured in the decision to terminate; Advocate Ingram himself identified the start date as one of three main issues and Mr. Riley accepted that the discussions regarding start dates would have been in some of the minds of those who made the decision to terminate, but possibly not all.

Job plan

16. Where we come to is that the start date was agreed and Dr. Alwitry signs his contract. The contractual terms are in full force at this stage. This includes a duty to undertake a two-way process of agreeing a job plan, as is common in every consultant appointment of this nature.
17. There was some discussion with Mr. Riley regarding differences between the UK and Jersey practices. This included a distinction between the amount of PAs clinicians are required to work and an expectation that consultants should be available for cover on Saturdays. These issues were not discussed at the interview and in respect of the Saturday cover at least this is plainly contrary to the express terms of service for consultants (terms proffered by the States' Employment Board); in particular paragraph 3.3.3 [AB/T2].
18. The Hospital recruits many consultants from the UK. Like Dr. Alwitry they will no doubt be familiar with UK practices as opposed to Jersey practices. It is incumbent on the Hospital and the interviewing panel to ensure that candidates are fully aware of distinctions between Jersey and UK practices at the interview stage.
19. The distinctions between Jersey and UK are important and will clearly be of interest to candidates. Also, clarifying the situation at the outset will no doubt avoid confusion later down the line including when parties come to negotiate job plans.
20. Dr. Alwitry wasn't told about the Jersey practices. Dr. Alwitry was provided with a contract which he studied and digested. It is abundantly clear from that contract, prepared by the SEB that he does not have to work Saturdays. On 24 September 2012 Dr. Alwitry wrote to Mr. Leeming about his PAs in his contract and wanted to check his understanding [MB/P149]. It was confirmed to Dr. Alwitry that his contract contained 10PAs [MP/P149]. At this stage nothing  was  said  about  the Jersey  practice,  notwithstanding  Dr. Alwitry querying the PAs in his contract.

21. On 7 October 2012 Dr. Alwitry wrote to Mr. Downes on the issue of PAs in his contract [MP/140]. Dr. Alwitry refers to the fact that he has had confirmation from medical staffing but is still confused. Mr. Downes' response was on 9 October in which he gave no further explanation as to the PAs and chastised Dr. Alwitry for his efforts to alter the timetable [MB/P139]. At this stage Dr. Alwitry was effectively told to accept what was on offer or walk away. Dr. Alwitry was still not told about the Jersey practices notwithstanding that he had queried the PAs. The Hospital failed to engage with Dr. Alwitry properly and ignored important employment issues.
22. Dr. Alwitry was confused about the different practices and with good reason. Not  only  are  they  unfamiliar  but  they  contradict  express  terms  of  his employment. Mr. Riley suggested that they were somehow implied terms. At any level an express term will prevail and it is hard to see how an alien and unfamiliar condition could be incorporated into a contract impliedly in the face of a clear express term to the contrary. Other than consultants practicing in Jersey, very few people will know or be familiar with Jersey practices and, in particular, potential employees from the UK. It is unfair for candidates and employees not to know the terms of any potential employment and not to have those terms set out in clear language.
23. The  Hospital  again  must  accept  fault  for  failing  to  engage  and  address Dr. Alwitry on issues which he had a right to be informed about and had queried. Dr. Alwitry's approach was perfectly appropriate and sensible; he sought to clarify his understanding and identified an issue he was confused about.
24. The e-mail correspondence speaks for itself and shows Dr. Alwitry being polite and professional with Hospital staff. This is a far cry from the allegations that his communications were unreasonable. Further, all of the other e-mails back and forth between the Hospital staff and Dr. Alwitry, save for Mr. Downes' e-mail of 9 October, show a good relationship and rapport. These e-mails extend  beyond  purported  issues  with  Dr. Alwitry  and  directly  contradict allegations that Dr. Alwitry's communications were considered unreasonable. Dr. Alwitry had worked as a locum and so the Hospital staff were known to him as he was to them. He was an employee looking forward to taking up his post and working with the Hospital staff and, where possible, looking forward adding  value  and  improving  services.  Mr. Sidebottom  and  Mr. Mathew considered  the  correspondence  and  firmly  believed  Dr. Alwitry  conducted himself  with  diligence  and  the  utmost  professionalism  and  held  the correspondence was not inappropriate or unreasonable.
25. Mr. Riley's evidence was that the hospital at least knew and appreciated that by purporting to withdraw the job offer they were, in fact, terminating the relationship and breaching terms of the contract. Whether this  was quite relayed to the States' Employment Board, it is not clear.
26. The decision to terminate was made between a few members of Hospital staff without any proper independent checks or balances in place. Hospital staff were taken at their word without any efforts being made to verify the accuracy of their allegations. There are almost no records, which is astonishing in light of

the  suggestion  that  they  already  considered  there  to  be  a  red  flag  over Dr. Alwitry because of the start date issue.

27. Due process to check that allegations made by staff against an employee who was already contracted to start were simply not in place or not followed. The Hospital,  rather  than  undertake  ordinary  investigations,  applied  a  heavy handed, unjust and wholly disproportionate approach to dismiss Dr. Alwitry. There were no statements from staff or allegations put to Dr. Alwitry and he was denied any opportunity to respond to criticisms or have his matter dealt with by someone independent. This is contrary to principles of natural justice and inconsistent with the terms of his contract.
28. This is inappropriate for any employer, let alone a public body who should clearly lead by example. This is at complete odds with best practice and clearly does not allow justice to be done, or be seen to be done. On any view it was plainly unfair and has had a profound effect of Dr. Alwitry's professional and personal life.
29. It is inconceivable that there should be a different approach taken by the Hospital management regarding disciplinary procedures in respect of someone who has taken up the post, as opposed to someone who has signed a contract but not yet taken up the post.
30. The contracts for consultants are signed in advance and it is hard to envisage a potential employee resigning from a permanent post and relocating to Jersey without the comfort of a signed contract of employment. Further, the terms of the contracts anticipate issues being negotiated (for example job plans) before the post is taken up.
31. In any event, the contract was entered into in August 2012 and the terms are in full force. This appears to be accepted because it was Mr. Riley's evidence that the hospital staff knew or held the belief that the termination was a breach of contract. This is consistent with the Law Officers' Department's e-mail dated 30 October 2012 [MB/P173].
32. The  Hospital  entered  into  the  contract  with  its  eyes  wide  open.  It  had Dr. Alwitry's CV and application form and there had been informal and formal process.  The  Hospital  also  had  the  benefit  of  observing  Dr. Alwitry's performance as he had served as a locum on many occasions. The Hospital were fully aware of their obligations as a party to the contract and as an employer. Dr. Alwitry was an employee who had rights and interests as such.
33. It is wholly aggravating that the Hospital took the steps it did just a week before Dr. Alwitry was due to take up his post. Mr. Riley's evidence was that on his risk analysis it was better to sack Dr. Alwitry before he took up his post than to live  with  the  consequences  of  Dr. Alwitry  taking  up  the  post.  Mr. Riley's rationale was that he did not have to apply ordinary grievance procedures for employees because Dr. Alwitry was not in the post. That is striking and plainly misconceived. This was a blatant attempt by a few Hospital staff, motivated by personal problems they had with Dr. Alwitry or the way he conducted himself, to block Dr. Alwitry taking up his post and to try and circumvent due process and proper procedures. Further and in order to achieve their aim they grossly

exaggerated (if not wholly fabricated) allegations and misled themselves and others including the HR Directors, the States' Employment Board and the Ministers.

Patient safety

34. It is also aggravating that the Hospital took the steps it did after Dr. Alwitry had raised legitimate patient safety concerns, which is his duty as a doctor and beneficial for the Hospital as a whole. Mr. Riley says that this was discussed and he felt he had been given comfort from the clinicians that there was no need to go further into the matter. Mr. Riley's evidence was also that the patient safety issues were a red herring.
35. This is a serious allegation for someone without any medical training to make against a very well regarded specialist consultant. It has no merit and there is sufficient  evidence  before  the  Panel  that  confirms  that the  patient  safety concerns had a legitimate basis and were well founded. The Panel's attention was drawn to the 4 reports obtained by Dr. Alwitry which praise Dr. Alwitry and suggest that he should have been commended and not criticised [AB/T10].
36. Mr. Riley's suggestion that there has been some form of collusion or spin or that the reports do not reflect the author's professional opinion is denied. Again this is a very serious allegation to make against a number of senior experienced and well respected individuals. The authors were asked for their professional opinions and they provided them accordingly in their professional capacity and in the knowledge that they may be used.
37. The  patient  safety  concerns  were  raised  because  of  issues  of  risk.  It  is disingenuous  to  suggest  that  the  ulterior  motive  was  purely  to  enable Dr. Alwitry not to work Fridays so that he could see more of his family. Dr. Alwitry does not deny that he desired Fridays off but he does strongly deny and take offence to the suggestion that his concerns were raised with that objective in mind. Dr. Alwitry has written extensively about the patient safety concerns he raised and it cannot therefore come as a surprise to the Hospital that he raised them. It is clearly best practice that he does.
38. Further,  Dr. Alwitry  in  his  e-mail  dated  7 October 2012  provides  several possible alternatives and solutions to the timetable problems [MB/P140]. This includes Dr. Alwitry working Fridays and Saturdays. It is not correct to say that Dr. Alwitry was not prepared to work Fridays and Saturdays when it is clear that he would, and could, if he needed to. Not one of Dr. Alwitry's proposals appears to have been considered which is a gross failure in itself.
39. In any event, the purpose or reasoning behind the patient safety concerns being expressed is irrelevant. The fact is patient safety concerns were raised, they were legitimate and the Hospital was duty bound to consider and deal with them appropriately.
40. It is a significant step for Hospital staff to accuse a specialist consultant, who has written on relevant clinical risks, that he was misleading those in the Hospital. There was no misleading and there was no proof or evidence to substantiate the allegations that the patient safety concerns were a red herring.

This is serious and no such allegations should be made without a proper basis for the same.

41. The  evidence  before  the  Panel  shows  that  Dr. Alwitry  raised  legitimate concerns which he had researched and written about and, in the circumstances, Dr. Alwitry should have been commended and not criticised or accused of fabricating reasons for not working Fridays. Indeed the express terms of his contract require that he should be protected from sustaining any detriment as a result of raising such concerns. The steps actually taken by the Hospital and States' Employment Board could not be further from that.
42. The Hospital also failed to properly follow up or record any discussions regarding the patient safety concerns. It is accepted that the hospital will decide how it wishes to manage its risks but it is of concern that an employee is dismissed shortly after having raised legitimate concerns and then is targeted as a troublemaker and dismissed. This is clearly not best practice.

Before decision

43. Mr. Riley gave evidence that part of the reason for Dr. Alwitry's dismissal was because of the volume of his communications. On 9 October 2012 Mr. Downes wrote  to  Dr. Alwitry  complaining  that  there  had  been  an  "awful  lot  of correspondence" and then proceeds to warn Dr. Alwitry about making too many demands [MB/P155]. Subsequently on 19 December 2012 Mr. Downes in an e-mail states that he had not had a response from Dr. Alwitry to his e- mail dated 10 September and appears to complain that Dr. Alwitry had not visited him when he was over in October [MB/P158]. Clearly Dr. Alwitry is damned if he does and damned if he doesn't.
44. Mr. Downes' e-mail does not appear to be accurate in any event. First, his e- mail regarding the timetable was sent on 24 September 2012 [MB/P123] and, second, he also sent an e-mail to Dr. Alwitry on 9 October 2012 [MB/P155].
45. Advocate Ingram submitted that Mr. Downes' e-mail dated 9 October 2012 [MB/P155] left the door open for further discussion on the timetable. This is misconceived and on any plain reading of Mr. Downes' e-mail it firmly shuts the door in Dr. Alwitry's face. In short, Dr. Alwitry will have to accept what is being offered or go elsewhere but there is to be no further debate and you must stop  with  your  demands.  This  is  a  very  clear  warning  about,  at  least, commenting further on the timetable.
46. Mr. Downes' e-mail appears to be praised by other staff members [MB/P155]. It  is  astonishing  that  Mr. Downes'  e-mail  was  actually  sent  in  the extraordinarily heavy-handed terms that it was when all that was trying to be agreed was a timetable which both parties were required to work together to agree and wherein Dr. Alwitry had liaised with the consultants he was told to. Further, Mr. Downes' e-mail comes off the back of requests to clarify the PAs issue  which  he  fails  to address  and,  more  importantly,  it  wholly  ignores legitimate  patient  safety  concerns  raised  in  Dr. Alwitry's  e-mail  of 7 October 2012 [MB/P140]. Mr. Downes'  e-mail  of  9 October 2012 is  not constructive to a good and friendly working environment and neither does it

promote best practice in respect of mutual obligations and protecting employee disclosures regarding patient safety issues.

47. The Respondent and Mr. Riley have been unable to articulate what it is exactly that Dr. Alwitry did that was so wrong. Mr. Riley's response was to the effect that "there was no straw that broke the camel's back, the camel's back just disintegrated". It has been systematic of the Respondent's case that they fail or refuse  to  provide  any  details  or  particulars  as  to  the  facts that  lead  to Dr. Alwitry being dismissed. That simply is not good enough when coming from a public body.
48. When asked if Mr. Riley could point to a time when a procedure was initiated, his response was that "23 October was probably as good as any". It speaks volumes that a HR director is not able to definitively state when a procedure was in place. The reality was there were no procedures followed at all.
49. Following Mr. Downes' e-mail dated 9 October 2012, Dr. Alwitry spoke to Mr. Downes over the telephone. Dr. Alwitry has told the Solicitor General about this telephone conversation in which he states he accepted the timetable proposed by Mr. Downes [MB/P43]. It appears that the Solicitor General discussed this telephone conversation with Mr. Downes who was unable to recall it [MB/P44]. Dr. Alwitry supported his allegation that a telephone call took  place  by  supplying  his  telephone  bill  records.  It  is  astonishing  that Mr. Downes  does  not  have  a  recollection  or  make  a  record  of  such  a conversation which took place.
50. In any event and on 31 October 2012 Mr. Downes wrote to Mr. McLaughlin with a proposal that he was happy to send to Dr. Alwitry that would see Dr. Alwitry take up his post. Mr. Downes' e-mail is after the Law Officer's Department's e-mail dated 30 October 2012, which purported to give advice about dismissing an employee or withdrawing a job offer [MB/P173]. It can reasonably be inferred that, at this stage, there is no purported loss of trust and confidence because Mr. Downes is content to work with Dr. Alwitry.
51. As is accepted by everyone, Dr. Alwitry had no contact with the Hospital staff from 31 October 2012 until he received notice of his termination. Dr. Alwitry was also not expected to contact the Hospital and, in fact, had been told not to make any demands.
52. Mr. Riley  gave  absolutely  no  account  of  anything  which  changed  from 31 October until the decision was made to terminate. What is clear is that on 12 November 2012 the BMA made contact with Mr. Jones and suggested that Dr. Alwitry has "run into a few problems with the consultant lead" [MB/P183].
53. Mr. Riley's position was that his e-mail, written a few minutes after seeing the BMA e-mail, provided confirmation that a decision was taken earlier to dismiss Dr. Alwitry. With respect there are absolutely no records of discussions prior to  Mr. Riley's  e-mail  about  any  decision  having  been  taken  to  dismiss Dr. Alwitry. It is inconceivable that where a decision is reached on such a serious matter as dismissing an employee that there would be no written note of the same, whether contemporaneous or not.

Decision

54. In any event, the decision was not reached until 13 November 2012 when Mr. McLaughlin, Mr. Siodlak and Mr. Riley (and possibly Mr. Luksza) met "to discuss the  appointment  of  Dr. Alwitry" [MB/P166].  If there  had  been a decision reached earlier by different individuals then no doubt this would have been worth a mention in this note. The note records the following –

"Dr. Alwitry's communication, attitude and behaviour since his offer of  employment  was  accepted  with  Health  &  Social  Services  was discussed, along with his subsequent reporting of Mr. Downes to the BMA.

Those  present  agreed  that,  although  regrettable,  a  withdrawal  of employment was required."

55. The decision was taken by those present and the alleged complaint about Mr. Downes was a feature in the decision. While Mr. Riley originally denied that the alleged complaint played any part in the decision, he later conceded that it did but that he considered it de minimis.

Alleged complaint

56. It is inconceivable that the alleged complaint was not a factor in the decision to terminate. It was referenced in the note of 13 November 2012 and this is the only record of the decision and the reasons for same [MB/P166]. The Hospital management had received advice from the Law Officers' Department and it was clear that "care should be taken with regard to the reason for subsequently wishing to withdraw" [MB/P173]. No doubt great care was therefore taken when recording the reasons for the decision.
57. Mr. Riley's protestations that the alleged complaint was not a material factor in the decision to terminate goes against all the available evidence –

1. First, there is the timing – nothing happens between 31 October and 13 November save that the Hospital staff become aware of an alleged complaint against Mr. Downes;
2. Second, the meeting which records the decision took place on the 13 November;
3. Third,  Mr. Riley's  letter  to  Mr. Sinclair  dated  15 November 2012 asking the States' Employment Board "to clear the way for [the] decision to be enacted" and which alleges that Dr. Alwitry's behaviour has been unacceptable and that he has "engaged the BMA to support a  formal  complaint"  and  that  Mr. Downes  "not  altogether unreasonably, has indicated that he would feel obliged to resign as CD if the offer is not withdrawn". Mr. Riley declined to answer questions about his inclusion of such comments in the letter and the reasonable inference is that the alleged complaint and potential resignation was to smear Dr. Alwitry's character and to add weight to the cause that he should be dismissed summarily.

4. Fourth, Ms Haste's report in which she refers to being told about complaints being made by Dr. Alwitry to the BMA about Mr. Downes and that it was "regularly stated that it would be "untenable" for the management  authority  to  be  devalued  by  rescinding  the  decision, which was a result of a very strongly held concerns and beliefs" [BM/P315–317].

58. As an aside, it is deplorable to consider that the threat of one employee resigning from a post or otherwise should or could feature in a decision to terminate another employee summarily. If this is something the decision makers considered a factor or relevant, and Mr. Riley deemed it relevant enough to warrant a mention in his letter, then this is yet another serious error.
59. As  the  Solicitor  General  notes  in  his  report  at  paragraphs 170–179 [MB/P54–56], rather than tackle the issue head on the Hospital are happy to carry on regardless under the mistaken belief that there was a complaint and then to rely on it for termination purposes. This was a serious procedural error which could have been, and should have been, easily avoided by a meaningful call to the BMA.
60. Yet further, even if Dr. Alwitry had made a complaint to the BMA (his trade union) it was plainly wrong for the Hospital or SEB to react as they did. The BMA as the trade union of most (if not all) clinicians, here and on the mainland, performs a vital role. As the Solicitor General recognised in his report, if a complaint had been made then it might have had merit. The appropriate course would be to properly consider and resolve whether it did or not; the plainly inappropriate course would be to sack the Complainant without more.
61. The Hospital staff proceeded completely at their own risk when they failed to ensure  what  the  proper  position  was.  The  Hospital  staff  should  have investigated the matter and it was their duty to do so. Instead they proceeded on false assumptions and relayed the same to other senior personnel including the Ministers.

After decision

62. It  was  incumbent  on  those  individuals  who  made  the  decision  on 13 November 2012 to properly apprise themselves of the true circumstances and facts (this includes not just the alleged complaint but the complete picture regarding the communications between Dr. Alwitry and Hospital staff). These are senior employees and they wholly failed to apply any form of process or procedure  to  get  a  complete  picture.  It  would  appear  that  from  the 13 November 2012 at least, everyone has been misled and Dr. Alwitry has had his name dragged through the mud.
63. Mr. Sinclair and others within the States' Employment Board and the Ministers were misled. Whether by commission or omission they were misled as to the grounds and merits behind the decision to terminate which they were being asked to ratify.

64. Whether the States' Employment Board or Ministers should undertake a more thorough  enquiry  process  may  be  a  separate  matter  and  there  was  no substantive evidence before the Panel about the processes they undertake. What is clear however is that at least three (possibly four) very senior employees from the Hospital had made a very serious decision (which included breaching terms of an employment contract shortly before the post was to be taken up) and then they made their case for getting that decision ratified with a complete disregard for due process and fact finding.
65. Those senior employees would have known that significant weight would be given to their decision because it comes from a position of authority where they would have been expected to have undertaken due process and fully informed themselves  of  all the  facts.  In  these  circumstances,  any  such  reliance  by Mr. Sinclair,  the  States'  Employment  Board  or  the  Ministers  was  wholly misplaced.
66. There was no independent process or investigation by someone from outside of the departments. The clinicians or management clearly had close ties with one another  and  their  interests  were  better  served  by  supporting  each  other. Whatever the merits, without any independent observer and without an accused having an opportunity to face allegations against him, the Hospital was acting contrary to principles of natural justice and basic fairness.
67. Dr. Alwitry can rightly feel aggrieved because there were clear terms in his contract that protected him if he raises patient safety concerns or if disciplinary action is taken against him. The evidence (or lack thereof) suggests that there were key Hospital staff who knowingly and intentionally rushed through a decision to terminate to avoid and justify procedures not taking place.
68. The decision was not based on an investigation or any form of fact gathering exercise and the decision proceeded on mistaken beliefs regarding the extent and content of communications  and alleged complaints.  These errors  are compounded by the fact that there were personal issues and interests in play (including private practice issues) which were not declared and improper information and threats (i.e. Mr. Downes threatening his resignation) provided to key figures whose authority was required to sign off on such decisions.
69. Dr. Alwitry's interests and rights were wholly disregarded because he was not in the post and was therefore considered an outsider and easily expendable. That is plainly wrong, particularly in circumstances where he due to be in the post within a week, having already resigned from his previous post.
70. The Respondent proceeded under mistakes that there had been a complaint and that generally Dr. Alwitry's communications or conduct was unreasonable and of such severity that it merited terminating his contract summarily or dismissing him for gross misconduct. In the circumstances the Respondent made a decision which, if it knew the all facts and circumstances, no reasonable employer would have made.

71. No reasonable employer would, or should, make a decision to dismiss an employee in the absence of due process and where the facts are unknown. Had the Respondent known this alone it is inconceivable that it would have agreed and ratified the decision to terminate Dr. Alwitry's employment.
72. Further, had the Respondent known that Dr. Alwitry had raised legitimate patient safety and that the guidance from the General Medical Association was not followed thereafter, it is inconceivable that it would have agreed and ratified the decision to terminate Dr. Alwitry's employment.
73. The suggestion that the outcome would have been the same in any event even if appropriate procedures been followed is wrong. In any event it is irrelevant. Procedures are inherently important to avoid errors and mistakes being made and to suggest that the same outcome would result is hypothetical and requires a  high  degree  of  speculation.  The  Panel  should  not  concern  itself  with "what ifs";  it  is  enough  that  procedures  were  not  followed  or  were  not adequate. In any event, Dr. Alwitry's position is that had proper procedures been followed his employment would not have been terminated.

Purported investigations

74. Mr. Beal's report fails to deal with a lot of issues and some of those matters are dealt with in Sinels' letter dated 24 June 2013 [AB/T19]. This must be accepted to a degree, since otherwise there would have been no reason for the Solicitor General to conduct his investigation.
75. Dr. Alwitry has grave concerns about the Solicitor General's investigation in general and the findings. Sinels responded to the report in draft in a letter dated 5 February 2014 which  was  33 pages in length [AB/T19]. This  letter was largely ignored and the report was finalised with little amendments.
76. The Solicitor General was instructed by the States' Employment Board to carry out  the  investigation.  Dr. Alwitry  participated  fully,  including  providing confidential correspondence between himself and his trade union. Dr. Alwitry was led to believe that the Solicitor General's investigation was independent; he was never told that it was not and he had previously raised concerns over the independence of Mr. Beal's report.
77. The  Solicitor  General's  investigation  was  done  behind  closed  doors.  The witnesses were all interviewed separately. Dr. Alwitry was not able to attend or participate. In fact, the Respondent resisted the disclosure of the interview transcripts notwithstanding they clearly contained Dr. Alwitry's personal data and were about him. Only because Dr. Alwitry pursued his subject access requests through the Royal Court has this information been made available to him.
78. Dr. Alwitry  was  completely  in the  dark  regarding the  Solicitor  General's investigation. Dr. Alwitry had subject access requests pre-dating the Solicitor General's instructions which were promised to be handed over week beginning 7 October 2013. On 4 October 2013 the Solicitor General asked to suspend the requests pending his investigation, which Dr. Alwitry reluctantly agreed to do. After the Solicitor General had finished his report the Respondents declined to

comply with the subject access requests. This is set out in paragraphs 6 to 9 of Alwitry v The States' Employment Board and another [2016] JRC 050.

79. On or around 19 February 2015, for the very first time, Dr. Alwitry was first given notice that the Solicitor General had provided the States' Employment Board with legal advice in August 2013 and privilege was asserted over that advice. The advice predates the report and was not disclosed to Dr. Alwitry prior to his participation in the investigation or prior to the request for and receipt  of  confidential  information  from  Dr. Alwitry.  That  is  astonishing behaviour on the part of any law officer, let alone the Solicitor General.
80. The Solicitor General's report is compromised and cannot and should not be relied upon. Leaving aside the many errors and inaccuracies in that report, detailed more fully in Sinels' letter of 5 February 2014, the Solicitor General was plainly in a position of conflict and the process was not open.

Conclusion

81. Dr. Alwitry  throughout  has  acted  reasonably  and  professionally.  His communications were polite and constructive. He complied with his duties to engage on matters of job-planning and he discussed the relevant issues with people he was directed to talk to. Dr. Alwitry did nothing wrong. He was astute and had the welfare of the hospital and the patients at the forefront of his mind. He took steps to bring patient safety concerns to Hospital staff and was trying to look at ways to improve standards.
82. All in all Dr. Alwitry was a model applicant and would no doubt have turned out to have been an outstanding employee who really could have benefitted the Island and raised new standards at the hospital. He should be commended and Jersey, by the actions of a few members of the Hospital staff with personal grievances, has lost a huge asset. Further, Dr. Alwitry has suffered enormously because of this not only financially but emotionally and it has clearly affected his health.
83. Dr. Alwitry's prime reason for the complaint is effectively to seek a finding that clears his name and exposes the errors in this case so that lessons can be learned and, should there be similar problems in the future, such errors are not repeated. This is particularly so in relation to the ability of employees to raise patient safety concerns without fear of recrimination or that that they will lose their jobs.
84. Dr. Alwitry prides himself on acting professionally (which he did) and feels the way he was dismissed (i.e. a week before he was due to start) draws an adverse inference. Given that the world of Ophthalmology is specialist and small, speculation will be rife and affects his future employability. Dr. Alwitry hopes that the findings of the complaint will show, not only that the hospital acted unjustly, oppressively and contrary to principles of natural justice, but that he acted  properly  and  reasonably.  As  many  others  have  said,  he  should  be commended for his efforts.

The Board received the following closing statement from Dr. Alwitry (this statement was submitted in writing after the hearing due to time constraints) –

85. This Reply is pursuant to the Panel's directions. In addition to this Reply Mr. Alwitry also continues to rely on his Written Closing Submissions filed as filed on 18 March 2016 ("WCS").
86. Paragraph numbers mentioned herein, unless stated otherwise, refer to the Respondent's Closing Submissions.
87. The Respondent's Closing Submissions, disappointingly, do not address the WCS. The Respondents maintain that they acted in an appropriate and proper manner  yet  they  fail  to  address  clear  failures  and  deficiencies.  This Respondent's stance is, and continues to be, unreasonable and they fail to recognise gross errors which is a serious aggravating factor.

The Respondent's evidence

Paragraphs 3 to 8

88. The Respondent alleges that it would have conducted its case differently but for an indication from the Panel regarding the issues. The Respondent now seeks to rely on and bring in further material. Since such a course flatly contradicts the clear directions given by the Panel, it should be refused in the absence of a very good reason to depart from those directions. There is no good reason to do so, for the reasons which follow.
89. With respect, this is a blatant attempt to try to bring in material after the event and  cast  doubt  in  the  Panel's  minds.  This  is  wholly  unacceptable  and unreasonable.
90. It is clear that the Respondent was required to provide the Panel with a fullresponse to  the  complaint.  The  Respondent's  Response  was  filed  on 9 March 2015 and appended to the same was Mr. Beal's Report, the Solicitor General's  Report,  the  interview  bundle  used  by  the  Solicitor  General  in compiling his Report and Ms. Haste's Report. That was the extent of the material relied on by the Respondent, at their election.
91. The Respondent's Response was submitted prior to Ms. Hart 's e-mails timed of 9 April 2015 and 3 June 2015. It is clear that the Respondent was, at that stage, relying on the reports and Mr. Riley.
92. It is disingenuous of the Respondent to say that it would have conducted its case differently or called more witnesses but for comments made in Ms Hart 's e-mails. The Respondent had already put forward their case and it remained unchanged.
93. The suggestion that the Panel explored issues outside of the matter before it is astonishing. The issues raised before the Panel were inextricably linked to the review of the processes under consideration and the issues were considered in the reports relied on by the Respondent. They were also squarely addressed in the Complaint to which the Respondent was responding. The Respondent should have  been,  and  was,  aware  that  the  issues  would  be  before  the  Panel.

Nevertheless it was the Respondent's decision to rely on the reports and only call Mr. Riley as a witness.

94. Ms Hart 's 3 June 2015 e-mail is clear, only those attendees she has been informed of will be able to participate and no further documents will be forwarded to the Panel for consideration.
95. It is therefore wholly inappropriate for the Respondent to seek to provide further material to the  Panel unilaterally. Mr. Alwitry  objects to the  new material being introduced at this late stage.
96. Mr. Alwitry acknowledges that the Panel is the master of its own procedure and it can proceed as it wishes, which includes accepting further evidence.
97. The fact is that the Respondent asks the Panel to accept notes and transcripts of interviews as evidence. They were done behind closed doors and for a different purpose and the Panel should therefore exercise extreme caution in respect of same. The evidence was not available to be tested by Mr. Alwitry or the Panel.
98. Further, it is absurd that the Respondent suggests that without the additional material the reports "would be confusing and difficult to understand". This makes no sense as the reports were clearly relied upon by the Respondent without the additional material and there was no suggestion at that stage that they only made sense with the additional material. Moreover, the Respondent was quite content to present those reports to Mr. Alwitry as comprehensively addressing and (in their view) resolving this dispute. It is incredulous that the Respondent should now contend that these same reports are confusing and difficult to understand unless accompanied by material which they strenuously fought to withhold from Mr. Alwitry himself.
99. With  respect,  the  reports  make  little,  if  any,  reference  to  transcripts  or interviews and it is wholly misconceived and disingenuous to submit, as a reason for the material being put before the Panel late, that the reports don't make sense without the underlying notes and transcripts.

100.  The Respondent also seeks to justify not disclosing the material earlier because

of proceedings in the Royal Court. Mr. Alwitry's position is that the Respondent was withholding the material unjustifiably and unlawfully. The Royal Court agreed and the disclosure of the Court was material was ordered. The only reason why the Respondent did not provide that material earlier is because it was strenuously and, in the Royal Court's judgment, wrongfully seeking to avoid ever having to release that material. In other words, any disadvantage of which it complains was entirely of its own making.

101.  In any event, it was always open to the Respondent to put forward alternative

statements and evidence prepared solely for the Panel. There is no good reason why the Respondent did not do this. This would have been the easiest and most sensible thing to do. Instead the Respondent avoided filing witness evidence before the Panel and relied on the reports. It did so at its own risk.

102.  It is also telling that the Respondent asks the Panel to place reliance on the

reports and the additional material but makes absolutely no attempt to direct the Panel as to what, if any, parts of the additional material is relied upon or why. It is submitted that the additional material is a complete red herring.

103.  In any event, the contemporaneous notes which are already before the Panel

should be given more weight. This was averred to at paragraph 13 of the WCS. This does not appear to be disputed.

104.  It was also averred to in the WCS (paragraph 10 thereof) that the lack of

contemporaneous  notes  and  a  proper  paper  trail  is  telling  and  adverse inferences can and should be drawn against the evidence relied on by the Respondent. This does not appear to be disputed either.

105.  The additional material is voluminous and it is disproportionate for the Panel

to consider it or take it further. If it is accepted then it should be subject to cross-examination and Mr. Alwitry should be permitted the opportunity put in further evidence (particularly in respect of further documentation that may come to light following the disclosure now ordered by the Royal Court Court). To do otherwise would subject Mr. Alwitry to considerable prejudice as a result of the Respondent's own election to withhold much of this material until it lost data access proceedings before the Royal Court. Plainly Mr. Alwitry should not be disadvantaged by the course which the Respondent has elected to take.

106.  Allowing further material to be adduced at this late stage is going to increase

time and cost and, in light of the time, costs and delay incurred in this matter and the opportunities already afforded to the parties, the Panel should be cautious to allow further material and should seek closure of this matter.

107.  In all the circumstances Mr. Alwitry submits that the Panel should reject and

ignore the additional material. If it is accepted he would like the time to consider it, the opportunity to cross-examine the individuals and to file further evidence himself.

The Respondent's submissions

Paragraph 12

108.  The Respondent alleges that it is accepted by all parties that the contract was

terminated by letter dated 22 November 2012. That is not correct. As the Panel are aware there was a dispute in the Jersey Employment Tribunal regarding the validity of the letter which was headed "without prejudice". The Jersey Employment Tribunal decided that the letter could be dissected into privileged and  open  correspondence.  Mr. Alwitry  does  not  agree  with  the  Jersey Employment Tribunal's decision. Whatever the status of the letter Mr. Alwitry was stopped from taking up his post.

Paragraph 13

109.  The Respondent alleges that there was a large number of discussions and

correspondence and that this was unusual given that Mr. Alwitry had not taken up his post. This is denied and there are no particulars or evidence to support this allegation.

110.  It is a theme that the Respondent makes an allegation but fails to support the

same with particulars or evidence in support.

111.  Mr. Alwitry submits that the evidence that is before the Panel already shows a

completely different picture to that alleged by the Respondent.

112.  In any event, it is not understood why there should be no discussions before

taking up a post. There should clearly be discussions about start dates as it is something that is routinely for negotiation and employers must consider an applicant's notice period and possible relocation. It is wholly reasonable and practicable for an applicant to want to see the terms of any contract and it would be wholly reasonable to discuss the content of same.

113.  The suggestion that discussions prior to taking up a post are unusual or should

not be entertained is poor practice and, in itself, speaks volumes as to the Respondent's  wilful  ignorance  of  ordinary  or  appropriate  procedure  in circumstances such as these. The discussions were reasonable and it is clearly inappropriate for the Respondents to hold them against Mr. Alwitry.

Paragraph 16 to 19

114.  It is accepted that the Employment Contract was executed on 24 August 2012.

This is clearly when the terms of the same took effect and there is no dispute.

115.  The Respondent alleges that it was the Respondent's position that the chosen

clinician was expected to start within 3 months of the interview. Nevertheless and as set out at paragraphs 4 to 6 of the WCS, a start date was not discussed at the interview stage and Mr. Alwitry had clearly stated in his application form that his notice period was 6 months. This does not appear to be disputed and it was clearly reasonable for Mr. Alwitry to consider that his notice period of 6 months has been accepted. Indeed the Solicitor General was himself heavily critical  of  the  Respondent's  approach  here,  recognising  that  the  job advertisement specified only a "Winter" start date, which season obviously runs to the end of February.

116.  The Respondent, without any  particulars, alleges that "discussions"  were

"highly unusual" and Mr. Alwitry's "demands" and "manipulative behaviour" started the "breakdown in relationship". The Respondents have failed time and time again to particularise such allegations and, specifically, to state:–

1. What the alleged discussions were including when and how they took place, between whom and what was said;
2. What is alleged to have been "highly unusual" and why;

3. What  were  the  alleged  demands  and  what,  if  anything,  was unreasonable about the same;
4. What the alleged manipulative behaviour was including when and how it took place, between whom and what was said or done; and
5. How any alleged conduct is alleged to have caused a breakdown in relationship and why.

117.  Again, the Respondent, without any particulars, refers to the "tenor, frequency

and manipulation" of discussions. It is unacceptable that the Respondent fails to articulate such allegations fully or indicate any evidence upon which it relies in support of the same.

118.  Notwithstanding this it is understood that the Respondent adopts and relies on the content of paragraphs 106 to 142 of the  Solicitor  General's Report in support of the above allegation. With respect the Respondent's reliance on these paragraphs of the Solicitor General's report is misconceived as it deals with

Mr. Downes' e-mail of 9 October 2012, a telephone call between Mr. Alwitry and Mr. Downes (which Mr. Downes failed to recall but which was proved by telephone records) and then correspondence between Mr. Alwitry and the BMA.

119.  The correspondence between Mr. Alwitry and the BMA was confidential and

would not have been known to the Hospital. It is therefore simply impossible for this correspondence to have had any impact on the Hospital deliberations or to have led the Hospital at the time to conclude that the relationship had broken down. If the Respondent now maintains that it was aware of the content of Mr. Alwitry's confidential communications with his trade union prior to Mr. Alwitry volunteering the same to the Respondent in the course of this dispute, it is required to state clearly how it came to be in possession of such communications. If it does not so maintain, then this entire line of argument in the Respondent's submissions must fall away.

120.  The Respondent alleges that the Hospital was not influenced "whatsoever" by

Mr. Alwitry's  reference  to  the  BMA.  Reliance  is  place  upon  Mr. Riley's evidence  before  the  Panel.  With  respect  Mr. Riley's  evidence,  as  set  out paragraph 55 of the WCS, was that he originally stated that the reference to the BMA played no part in the decision to terminate Mr. Alwitry's employment but later conceded that it did.

121.  Paragraphs 17 and 18 are at odds with one another. Paragraph 17 alleges that

Mr. Alwitry's communications with the BMA allowed the Hospital to conclude the relationship had irretrievably broken down but paragraph 18 alleges that Mr. Alwitry's reference to the BMA was not a consideration.

122.  Paragraph 18 is also at odds with the Solicitor General's Report which the

Respondent relies on and which states that the Respondent mistakenly believed that Mr. Alwitry had made a complaint to the BMA and that that mistaken belief was a factor in the decision to terminate Mr. Alwitry's employment. Mr. Alwitry also repeats paragraphs 56 to 61 of the WCS.

123.  Further,  Mr. Alwitry  also  refers  to  Mr. Downes'  e-mail  dated

26 November 2012  [MB/P191].  Mr. Downes'  e-mail  was  in  response  to Mr. Alwitry's query as to what had recently happened and why had he received the purported termination letter and what was behind the allegation that there was a dysfunctional relationship between them. Mr. Downes' e-mail suggested that Mr. Alwitry should reflect over past correspondence to find the answers to his queries and that "virtually all" of Mr. Alwitry's e-mails were unacceptable as was the alleged decision to report Mr. Downes to the BMA. Clearly the alleged decision to report Mr. Downes to the BMA was a factor in the decision to terminate and the evidence is overwhelming in this regard.

124.  With respect the Respondent's case is confused and simply does not make sense.

Paragraph 19 alleges the relationship had become "dysfunctional" and that Mr. Alwitry had "breached the implied term of trust and confidence". Again there are no particulars for this allegation or supporting evidence and that, in itself, is fatal for such a serious allegation. Indeed the Respondent's tendency to level such serious allegations without properly particularising the same, much less supporting them by evidence, is itself reflective of the way in which the Respondent dismissed Mr. Alwitry in the first place.

125.  The Respondent alleges that the relationship had become dysfunctional and

Mr. Alwitry  had  breached  implied  terms  of  trust  and  confidence  by 10 November 2012. The Respondent relies on Mr. Riley's evidence before the Panel. It is denied that this was the evidence before the Panel and the Panel is invited to consult its notes on this point. In any event it is clear that the mistaken belief that Mr. Alwitry had made a complaint to the BMA was a factor in the decision to terminate his employment and this was premised on an e-mail from the  BMA  on  12 November 2012.  The  decision  to  terminate  was  taken  on 13 November 2012 [MB/P166].

126.  The Respondent's submissions that the decision to terminate was taken before it mistakenly  believed there had been a complaint  to the  BMA is  wholly untenable. Mr. Riley's evidence was such, the Solicitor General's findings were

such and the Respondent has failed to address paragraphs 56 to 61 of the WCS which make a clear case that the decision to terminate followed and took into account the mistaken belief that Mr. Alwitry had made a complaint to the BMA.

Paragraph 21

127.  The Respondent alleges that there is no dispute that legal advice the Respondent

received informed the Respondent to terminate. Privileged is asserted over the alleged legal advice so it is wholly outside of Mr. Alwitry's knowledge and Mr. Alwitry makes no admissions in respect of the same. Given that Mr. Alwitry has not seen that advice because the Respondent asserts privilege over it, it is a mystery as to how the Respondent can now assert that it is undisputed that the Respondent dismissed Mr. Alwitry in accordance with that advice.

128.  Further and in any event, it is not accepted that relying on legal advice allowed

the Respondent to act unlawfully or to not follow due process.

129.  The Respondent asserts privilege over the advice and it is not clear what

instructions were relied on for the provision of any advice. Issues regarding advice are a matter for the Respondent and its advisers.

130.  It is denied, to the extent that it is the Respondent's case, that the Respondent can seek to be exculpated on the basis of inadequate or wrong advice.

Paragraph 22 and 23

131.  Paragraphs 22 and 23 confirm that the terms of the Employment Contract were

in effect at the material time.

Paragraphs 24 to 26

132.  For the avoidance of doubt the Reports and the findings within the same are not

accepted by Mr. Alwitry.

133.  It is not accepted that Mr. Riley "described" any manipulation of the start date;

this remains an allegation which is unarticulated and unsupported by any evidence.

134.  The allegation that timetabling was "orchestrated" by Mr. Alwitry during

Mr. Downes' absence to undermine him is denied. The issue of the timetable was raised by the Ms Hockenhull in Mr. Downes' absence [MB/P146]. In any event timetabling is something which should be agreed by negotiation and the terms of the Employment Contract provide for this.

135.  Mr. Alwitry's correspondence regarding the timetabling is before the Panel. It

is wholly reasonable, logical and polite correspondence which complies with the mutual obligation to negotiate a suitable timetable. Mr. Alwitry went further and also brought legitimate patient safety concerns to the Hospital's attention and practices that could have seen the care and standard improved for the Hospital and patients all round.

136.  Mr. Alwitry  clearly  understood  that  the  timetabling  had  to  be  agreed  by

Mr. Downes and therefore there could be no orchestrated attempt to circumvent or undermine Mr. Downes. Furthermore, Mr. Alwitry was clear to bring the correspondence to Mr. Downes' attention on his return. Mr. Alwitry's e-mail dated  7 October 2012  is  telling;  it  sets  out  sensibly  and  reasonably Mr. Alwitry's confusion regarding the PAs, the patient safety concerns and provides 5 potential solutions to the timetabling problem [MB/P69-70]. This was  a  typical  example  of  Mr. Alwitry's  approach  to  productively  and constructively face a problem and deal with it. To the contrary Mr. Downs refused to entertain Mr. Alwitry's suggestions and threatened him that "making too many demands at this stage of your appointment is unlikely to bode well for your future relationships within this organisation!" [MB/P68-69].

137.  For the avoidance of doubt, Mr. Alwitry's e-mail of 7 October 2012 expressly accepted that he would work on the Fridays and provide cover on a Saturday if

there was no alternative. Mr. Alwitry also states that he had a telephone conversation with Mr. Downes on 10 October 2012 and that he accepted the timetable provided by Mr. Downes. Mr. Downes alleges that he has no recall

of this telephone conversation taking place but Mr. Alwitry's billing records show that the call occurred and lasted for 8 minutes. In the circumstances, Mr. Alwitry's evidence is clearly more reliable. Mr. Downes' recollection is either unreliable or deliberately false.

138.  It is wholly wrong for the Respondent to allege that Mr. Alwitry would not work

on Saturdays. He committed to this even when he considered it to be at a substantial disadvantage to him and wherein it was clearly in contrast to the terms of his Employment Contract which expressly stated that he did not have to work weekends.

139.  The allegation that "Time was not of the essence" and Mr. Alwitry could have

and should have waited for Mr. Downes to return from his holiday is nonsense.

No doubt if Mr. Alwitry had waited for Mr. Downes' return he would have been

accused of sitting on it and that by not raising any issue it was deemed accepted. 140.  Mr. Alwitry was dealing with a senior staff nurse and it was clearly considered

appropriate for discussions to take place but it was clear that the overall

decision was with Mr. Downes. Notwithstanding that the decision lay with

Mr. Downes,  it  was  never  suggested  that  discussions  should  wait  for

Mr. Downes' return. This was not raised by the senior staff nurse or by any

other staff member. Mr. Downes' e-mail of 24 September 2012, while it may not

anticipate further changes to the timetable it does not suggest that any issues

should  only  be  discussed  with  him  and  should  wait  for  his  return

[MB/146–148]. Mr. Alwitry was not told that he was prohibited from discussing

the timetable with anyone else and it was reasonable for him to discuss issues

with other senior staff members in Mr. Downes' absence.

141.  Furthermore, it was the  senior staff nurse who instigated the timetabling

discussion in Mr. Downes' absence when she expressed concern that she could not see the "alternate sessions working well" and that it may result in "clerical chaos" and "make staffing the clinics a nightmare" [MB/P146]. Rather than discourteously ignoring the senior staff nurse's concerns, Mr. Alwitry gave thought and consideration to alternatives and tried to work with the senior staff nurse to achieve a more workable timetable that resolved many of the concerns she had.

142.  Mr. Alwitry sought to deal with the matter of timetabling timeously and he

cannot be criticised for the same. This is clearly appropriate and best practice as the sessions and surgeries need to be fixed in advanced and as soon as possible.

143.  The allegation that "Instead the Complaint (sic) sought to raise erroneous

patient safety issues and manipulate staff and other departments in the hospital to change surgery days to suit his personal needs" is denied and wholly without merit.

144.  Mr. Alwitry refers to paragraphs 34 to 42 of the WCS. The Respondent fails to respond or deal with any of the important issues within these paragraphs and continues to allege, without any foundation, the serious allegation that the

patient safety issues were erroneous and for an ulterior motive. This is wholly misconceived; the patient safety issues were real and the reasoning behind the

patient safety concerns is irrelevant. In any event, it is clear that the Hospital failed to apply any proper or adequate procedure regarding patient safety concerns and that is a serious error in itself.

145.  The Respondent alleges that had Mr. Alwitry been present the Panel could have

explored allegations that Mr. Alwitry "breached the relationship" and that the Respondent has been prejudiced by Mr. Alwitry's absence. It is not entirely sure what it meant by  "breached  the relationship" but it is  assumed  that the Respondent contends that Mr. Alwitry breached terms of the relationship. This is denied and it is further denied that Mr. Alwitry's absence has prejudiced the Respondent in anyway whatsoever. Given that the Respondent felt able to summarily dismiss Mr. Alwitry without needing to hear from him at the time, it is absurd for them now to suggest that he must be present in order to properly present their case as to why they were right to act as they did.

146.  The Respondent, again, without any particulars alleges that Mr. Alwitry has

breached terms of the relationship. It is not clear what the terms are that are alleged to have been breached or what specific conduct amounts to the alleged breach. There is simply no merit to such allegations.

147.  It is not clear how or why Mr. Alwitry's absence has caused prejudice. With

respect  Mr. Alwitry  has  made  himself available  to  Mr. Beal, the  Solicitor General (twice as well as providing confidential correspondence between him and the BMA) and he was cross-examined by Advocate Inrgam in the recent proceedings before the Royal Court. Mr. Alwitry was excused from the hearing on  medical  grounds  and  would  make  himself  available  should  the  Panel require.

148.  Mr. Alwitry had filed his complaint together with his bundle. The Respondent filed its own bundle so it clearly considered it knew enough to respond.

149.  Advocate Chiddicks appeared before the Panel and set out Mr. Alwitry's case.

Advocate Chiddicks was asked questions by the Panel and it was open to Advocate Ingram to ask questions or ask for an adjournment.

150.  The purpose of the hearing before the Panel is to examine the processes and

procedures adopted by the Respondent. Mr. Alwitry can provide little, if any, evidence  on  this,  particularly  given  that  those  processes  and  procedures deliberately did not involve him at all at the time of his dismissal. There was and can be no prejudice to the Respondent and the allegation that it has suffered some prejudice is another red herring.

151.  The suggestion that Mr. Alwitry's evidence should be treated with some caution

because it has not been tested by  the  Respondent or  the  Panel is  noted. Conversely the Respondent must accept that the same caution must be exercised in respect of the additional material it now seeks to submit to the Panel. Further, the reports, which the Respondent relies on, should be treated with caution and they are not evidence. Mr. Alwitry repeats paragraphs 74 to 80 of the WSC. It is submitted that the best evidence before the Panel are the contemporaneous notes and correspondence.

Paragraphs 27 to 28

152.  It is understood that the Respondent accepts that Mr. Alwitry's behaviour did

not cause the termination. The allegation that Mr. Alwitry's behaviour caused a breakdown in the relationship between him and Mr. Downes is denied. It is denied that, even if there was a breakdown in that relationship, that the same should have led to his dismissal.

153.  It is not understood how Mr. Alwitry's behaviour (which did not cause the

termination) caused the breakdown of the relationship. Again there are no particulars nor is there evidence in support of this allegation. In any event, it is not  clear  how  Mr. Alwitry's  behaviour  did  not  amount  to  a  ground  for termination but caused an irretrievable breakdown in the relationship. With respect this allegation has no merit or standing whatsoever.

154.  Mr. Alwitry conducted himself properly and professionally within the terms of

the Employment Contract and pursuant to his professional obligations as a doctor. It is inconceivable that acting to the high standards that Mr. Alwitry did, that this should have, or could have, led to a breakdown of a working and professional relationship.

155.  Mr. Alwitry did nothing wrong so it is not understood how he could have caused

any alleged breakdown of working and professional relationships. To the contrary, Mr. Downes and other Hospital staff's failure to engage with and comply with the Hospital's contractual terms and obligations as an employer and Hospital was clearly the cause of any alleged breakdown.

156.  It is clear that as at 31 October 2012 Mr. Downes was prepared to work with

Mr. Alwitry [MB/P159]. Mr. Alwitry had no contact with Mr. Downes or the Hospital after this time until the letter purporting to terminate his Employment Contract. Mr. Alwitry was not responsible for any alleged breakdown in the relationship and it is clear that the Hospital staff failed to investigate the alleged BMA complaint and therefore proceeded in error. It was the Hospital's mistake and lack of due process that led to any alleged breakdown in the relationship. It proceeded at its own risk.

157.  It is clear that Mr. Alwitry is an employee and has contractual rights, including

the  right  to  have  the  contractually  agreed  procedures  adhered  to  by  the Respondent. Mr. Alwitry was denied those rights. This is wholly inappropriate and wrong.

158.  The admission that Mr. Alwitry's behaviour did not cause the termination is

relevant and the Respondent and the Ministers were clearly misled on this point. Mr. Riley's  letter  dated  15 November 2012  [MB/P186]  expressly  refers  to Mr. Alwitry's  behaviour  as  being  "adversarial,  aggressive,  inappropriate, duplicitous,  unco-operative  and  frankly  unacceptable"  and  that  "this behaviour constitutes a loss of trust and confidence so fundamental as to undermine the contract of employment."

159.  Mr. Riley's letter was wholly misleading. The Respondent was clearly asked to support  the  decision  to  terminate  on  the  basis  of  Mr. Alwitry's  deemed unacceptable behaviour. This was wrong and the Respondent should clearly not

have been misled about Mr. Alwitry's behaviour and should have been advised that it specifically was not a cause or basis to terminate his contract.

160.  The allegations contained in Mr. Riley's letter were grossly exaggerated and

wrong. Such a letter should never be written, let alone by a HR Director for a government body.

161.  Further, Mr. Alwitry and the Jersey Employment Tribunal were misled. In

particular,  the  purported  termination  letter  dated  22 November 2012 [MB/P189]  stated  that  the  decision  was  informed  by  "the  attitude  and behaviour displayed". The reasonable inference is that Mr. Alwitry's behaviour caused the termination. The change in position wholly undermines the Hospital staff's and the Respondent's credibility.

162.  There is absolutely no evidence that the Hospital had "patient care" at the

forefront when they concluded the relationship had broken down. The evidence is all to the contrary. It was Mr. Alwitry who had raised patient safety concerns (in numerous e-mails which are all before the Panel) and this was ignored by the Hospital.

163.  The Hospital terminated Mr. Alwitry's  Employment Contract after he had

raised patient safety concerns. Whether or not there was a difference of opinion or  the  patient  safety  concerns  were  considered  adequately  managed, Mr. Alwitry was criticised rather than commended for his approach.

164.  Whatever the reasons for patient safety concerns being raised, once raised they

must be dealt with in the proper way. The purpose or reason behind the patient safety concern is irrelevant and the Hospital is bound to consider and deal with them appropriately. Failing to consider and deal with them is serious and unlawful. However it is wholly aggravating that the Respondent then, rather than commend Mr. Alwitry, makes serious accusations and allegations that undermine  the  reason  for  the  patient  safety  concerns  and  amount  to  an unbridled attack on Mr. Alwitry's character.

165.  Doctors are required to carry out their office with a high degree of integrity

and Mr. Alwitry takes this very seriously. It is wholly unreasonable that the Respondent  failed  to  address  the  patient  safety  concerns  properly  and needlessly (with the clear deliberate intention of undermining Mr. Alwitry and casting doubt over his character) expressed the view that they were raised for an ulterior motive. There was nothing to substantiate criticisms surrounding raising  of  the  patient  safety  concerns,  to  the  contrary  they  were  clearly legitimate.

166.  The Hospital staff carried out no due process to investigate the patient safety

concerns with Mr. Alwitry or to satisfy him (or even themselves) that the concerns were not warranted. They should have done so. The Respondent and the Hospital were bound and obliged to do so pursuant to the Employment Contract and duties owed to the GMC.

167.  The  Respondent's  actions  show  no  regard  for  patient  care  and  it  is unacceptable that the patient safety concerns were not addressed properly with

Mr. Alwitry, that he was subject to criticism for raising them and accused of  acting inappropriately. As set out in the reports provided by Mr. Alwitry, he should  have  been  commended  and  respected  for  acting  in  an  entirely professional and appropriate manner which was consistent with his contractual duties and general duties and professional obligations as a doctor.

168.  The Hospital's approach would likely stifle concerns in the future and that risks

the Hospital's development and its overall delivery of patient care. The Hospital staff  would  have  known  this  when  Mr. Downes'  sent  his  e-mail  of 9 October 2012 (which was praised by senior staff [MB/P155]).

169.  Clearly the Hospital and any government body should be cautious not to link

raised patient safety concerns with behaviour alleged to amount to a dismissal or  a  breakdown  in  relationship.  To  allege,  as  the  Respondent  does,  that Mr. Alwitry's  behaviour,  which  included  raising  patient  safety  concerns, caused the alleged breakdown in relationship is therefore wholly astonishing.

170.  This is a backward step for the Hospital which, on the evidence before the

Panel, victimises, or at least can be perceived to victimise, whistle-blowers or those professionals who raise legitimate patient safety concerns pursuant to their contractual and professional obligations. It is clearly inappropriate and unlawful for the Hospital to act in this way which negatively affects how employees and doctors conduct themselves in the future and it only serves to create  a  hostile  working  environment  where  employees  and  doctors  fear reprisals and recrimination for complying with their obligations. This is the opposite of how the Hospital is supposed to act and is contrary to the GMC guidelines and best practice.

Paragraphs 29 to 31

171.  It is alleged that Mr. Riley gave evidence that the working practices would have

been  explained  to  Mr. Alwitry  at  interview  or  shortly  thereafter.  This  is complete speculation. The Respondent has failed to put forward evidence from any member of staff at the Hospital whom they say actually told Mr. Alwitry about the working practices. This is because no one told Mr. Alwitry.

172.  The documentary evidence that there is clearly shows that Mr. Alwitry does not

understand the working practices and queried it. On at least two different occasions Dr Alwitry raised the issue of PAs and at no stage was he given an explanation.

173.  Mr. Alwitry relies on paragraphs 16 to 23 of the WCS. The onus was clearly on

the Hospital to apprise Mr. Alwitry of significant differences in practice which it failed to do. Mr. Alwitry reasonably sought explanations. Remarkably the Hospital seek to use this as evidence against him regarding inappropriate behaviour. This is wholly unacceptable and unreasonable. Clearly the sensible thing for the Hospital to do was to explore whether anyone had actually explained the differences to Mr. Alwitry, or to speak to him and clarify the position itself. The Hospital again led itself into error.

174.  The Respondent's position, notwithstanding the available contemporaneous

correspondence, is that it was Mr. Alwitry who was at fault for issues regarding the timetabling and this was due to his own family reasons. This is denied and the correspondence is before the Panel to read.

175.  Timetabling is something to be negotiated. Mr. Alwitry acted pursuant to the

terms of the contract and as per his duty as a doctor. Mr. Alwitry sought to negotiate  by  providing  alternatives  and  he  sought  to  raise  patient  safety concerns where appropriate and, in any event, he accepted the timetable.

176.  The Hospital failed to enter into any meaningful negotiations and Mr. Alwitry

was  threatened  not  to  make  demands.  This  is  clearly  in  breach  of  the Employment Contract. The Hospital's failure to accept any responsibility is wholly aggravating and unreasonable.

177.  Mr. Alwitry is well within his rights  to seek arrangements  which suit his

personal life. There is nothing wrong with this and the Respondent's continued reliance on such arguments are misconceived and unreasonable.

Paragraph 32

178.  The breakdown in relationship is alleged to be because of the inability to agree

a timetable and the complaints by Mr. Alwitry. This is denied. In any event, Mr. Alwitry agreed the timetable and he made no complaint.

179.  The Respondent's position is confused. Paragraph 32 and, in particular, the

admission that the mistaken complaint to the BMA was a dominant factor which

led to the breakdown of the relationship, is at odds with paragraphs 18 and 19. 180.  Clearly the Respondent was in error when it took into account a formal

complaint about Mr. Downes to the BMA. There was no formal complaint and

nothing for the Respondent to take into account. The Respondent should have

investigated this matter before proceeding in error.

181.  Regarding comments between Mr. Alwitry and the BMA generally, these are

confidential and the Hospital were not privy to them. They cannot and could not therefore reasonably be relied on as a factor in deciding to terminate Mr. Alwitry's employment.

Issued raised by the Panel

Factual issues surrounding the start date

Paragraphs 33 to 35

182.  The Respondent states its position was that the Clinical Director emphasised

the need for a start date in 2012 and that Mr. Alwitry wanted a start date in 2013 to suit his personal needs. The Hospital rejected a 2013 start date and a compromise was ultimately reached.

183.  There is nothing wrong with the Respondent seeking a start date that suits his

needs and clearly the issue of a start date is up for negotiation. In any event the start date issue was resolved.

184.  That should be an end to it however the Respondent's position appears to be

that Mr. Alwitry made "concerted effort[s]" to get views from different senior personnel  and  that  this  "was  a  deliberate  act  to  undermine  the  senior personnel".  There  is  absolutely  no  evidence  for  this  and  the  written contemporaneous correspondence shows a completely reasonable and polite number of exchanges.

185.  The Respondent also fails to address substantive issues such as the processes

at the interview stage which saw no issue raised in respect of Mr. Alwitry's application form (which clearly set out his notice period) or discussion at all regarding preferred starting dates. It was clearly reasonably for Mr. Alwitry to proceed on the basis that his application form had been read and there were no issues.

186.  Further,  the  Respondent fails  to deal with its  processes  for  how its staff

communicate  with  successful  candidates  generally  and,  if  a  candidate  is perhaps being too demanding, how it deals with issues. There are no notes or written records which evidence Mr. Alwitry had acted inappropriately or that he  was  deliberately  canvassing  the  views  of  different  senior  personnel. Mr. Alwitry was not told he had acted inappropriately or should cease doing anything he had done.

187.  The  start  date  was  agreed  and  Mr. Alwitry's  Employment  Contract  was

subsequently executed.

The potential for a conflict of interest over private practice

Paragraphs 36 to 37

188.  The issues of private practice is not "irrelevant" and the Respondent fails to

deal with the issue of private practice adequately or properly.

189.  Private practice may well be something the Hospital does not wish to involve

itself in but because it involves its employees there is a real potential for conflict, particularly as in this case where Mr. Downes was directly involved in the decision to terminate Mr. Alwitry's employment.

190.  The Respondent's allegation, made for the first time in its written closing

submissions, that Mr. Alwitry was to go into partnership with Mr. McNeela is completely false. Mr. Alwitry's intention was to practice from Little Grove Hospital but without any partnership or other financial link with Mr. McNeela. Again  the  Respondents  have  made  completely  unsupported  allegations, tantamount to giving evidence by their Advocate, without indicating any basis whatsoever for doing so.

191.  In any event, it would clearly be inappropriate and unlawful for Mr. Downes to seek that Mr. Alwitry's employment be terminated on the basis that Mr. Alwitry

turned down the offer of going into private practice with him and / or that he  chose to go into partnership with someone else and / or that he chose to set up independently.

192.  It is irrelevant whether Mr. Downes' support for the decision to terminate

included  Mr. Alwitry's  decision  regarding  private  practice  because Mr. Downes  being involved in the decision is enough. Mr. Downes  has a conflict of interest and he and the Hospital failed to declare it or otherwise manage the situation adequately.

193.  It is the failure to recognise and manage the conflict or interest, which may be

real or perceived. Regardless of whether justice is done it has to be seen to be done. The conflict was clear and present and would have been obvious to the decision makers and it was clearly inappropriate to proceed as they did without some form of independent process taking place.

Whether the letter to the States' Employment Board accurately reflect the position and whether the SEB were properly informed

Paragraphs 38 to 40

194.  Clearly Mr. Riley's letter dated 15 November 2012 [MB/P186] did not reflect

the accurate position and the Respondent was not properly informed of all the facts. The Respondent's position to the contrary is wholly untenable.

195.  The allegations against Mr. Alwitry in the letter were and are unfounded. To

state that Mr. Alwitry's behaviour was adversarial, aggressive, inappropriate and unco-operative is wrong and misleading and it was clearly wrong to advise the Respondent that Mr. Alwitry had engaged the BMA to support a formal complaint about Mr. Downes.

196.  Mr. Alwitry repeats paragraphs 62 to 73 of the WCS.

197.  The allegation that "great consideration" was taken over  the  decision is

unsubstantiated. It is not particularised and neither is there any evidence of a full investigation into the matters alleged. It is averred that this is because there was no investigation but, rather, senior personnel were taken at their word who had either deliberately misled the Respondent or were reckless as to the same. The Respondent was grossly misled and the "great consideration" was in respect of falsehoods and inaccuracies which wholly undermined the decision in any event.

198.  The letter did not accurately reflect the position and the Respondent was not

properly informed. The letter was motivated by Hospital staff who wanted to "sack this bloke before he even gets here" [MB/P120]. The Hospital staff did not like Mr. Alwitry's approach and wanted to expedite his termination to avoid any form of disciplinary process.

199.  Mr. Riley's evidence was that he considered it unheard of that the disciplinary process would be engaged if an employee's contract was terminated prior to

them taking up their post. The Respondent was asked by the Panel to provide authority for this which it has failed to do. Mr. Riley was clearly in error (or

knew the correct position and acted contrary to the same) and the full terms of the Employment Contract were in force.

200.  Mr. Riley's letter dated 4 December 2012 addressed to Mr. Alwitry states that

"Since  your  service  has  not  yet  commenced,  we  do  not  believe  that section 18.2.2 is engaged" [MB/P213]. Mr. Riley's letter was wrong and he wholly misrepresented the true position to Mr. Alwitry.

Whether the States' Employment Board should have relied entirely and solely on the views of senior officers who were directly involved with the Complainant

Paragraphs 41 to 42

201.  The suggestion that the Hospital staff acted objectively is denied. Mr. Downes

was in a position of conflict because of his private practice issues and because he mistakenly believed there was a formal complaint against him. Further, Mr. Riley's  letter  was  misleading  and  included  references  to  Mr. Downes resigning if Mr. Alwitry's employment was not terminated. Mr. Alwitry was an employee  with  rights  and  he  was  given  no  opportunity  to  address  any allegations. The decision was not objective and, in any event, not only must justice be done but it must be seen to be done.

202.  The suggestion that an independent process would undermine the trust and

confidence  between  members  of  the  Hospital  and/or  the  Respondent  is nonsense.  Clearly  an  independent  process  is  best  practice  as  potentially questionable decisions are brought to account. If the decision is just and fair there would be no reason to fear an independent review.

203.  Had there been an independent process in these circumstances it is impossible

that the Respondent would have terminated Mr. Alwity's Employment Contract. It is aggravating that the Respondents refuse to accept this.

Whether it was appropriate for the former Solicitor General to investigate his own department's advice

Paragraphs 44 to 50

204.  The Solicitor General's Report is not independent and was done behind closed

doors. Mr. Alwitry relies on paragraphs 74 to 80 of the WCS.

205.  The Solicitor General at paragraph 50 of his affidavit dated 19 February 2015

states:–

"I  did  provide  the  SEB  with  some  legal  advice  in  this  case  on 19th August 2013.  This  advice  is  covered  by  Legal  Professional Privilege and therefore is not disclosed. In any event, I have reviewed the document and there is no personal data in the advice that is not contained in my report and the bundle."

206.  On the face of what is said by the Solicitor General he clearly gave advice prior

to commencing his investigation and finalising his Report. This was unknown to Mr. Alwitry until the Solicitor General's affidavit was filed in the course of the Royal Court data access proceedings.

207.  It  was  clearly  inappropriate  for  the  Solicitor  General  to  undertake  the

investigation he did and his Report is unreliable and compromised.

208.  For the avoidance of doubt and notwithstanding the inappropriateness or

otherwise of the Solicitor General to investigate his own department's advice and conduct, Mr. Alwitry considers the Report flawed in many other respects and the Panel should review Sinels' letter dated 5 February 2014 [AB/T19].

The Law

Paragraphs 51 to 61

209.  The evidence from Mr. Riley was that he knew by terminating the Employment

Contract expeditiously it was not compliant with its terms and was a breach of contract.  Nevertheless  it was  decided  to  proceed  expeditiously  to prevent Mr. Alwitry taking up his post in the hope that they could forgo the disciplinary procedure. That is a cynical and intentional breach of contract on the part of a public body.

210.  It is clear that the Respondent wanted to ensure that there was no disciplinary

process. The Respondents put forward no authorities in support of dispensing with the disciplinary procedure prior to a post being taken up.

211.  The authorities now put forward by the Respondent are a blatant attempt to find a  legal  technicality  after  the  event  to  support  the  decision  to  forgo  the disciplinary procedure. It is wholly untenable that this is a case where it is appropriate to forgo the disciplinary procedure, if indeed it is possible to do so.

212.  The disciplinary process is a contractual term and by not complying with it the

Respondent  breached  the  terms  of  the  Employment  Contract.  To  do  so purposely is unconscionable, particularly for a government department.

213.  Mr. Alwitry was entitled to know the allegations against him and to have an

opportunity to answer the same. These are principles of natural justice and the Respondents are nowhere near the grounds for dispensing with the same and their reasoning for doing so (i.e. to prevent Mr. Alwitry taking up his post) is flawed.

The Respondent's conclusion

Paragraphs 62 and 63

214.  It is not essential to hear from a Complainant directly or at all. In any event Mr. Alwitry was represented and his case was set out in good order and material was relied on which had been filed by both parties. On the material

filed by the parties and the evidence provided by Mr. Riley the Panel has more  than enough information to make findings on the balance of probabilities and uphold the complaint.

Paragraphs 64 and 65

215.  It is clear that the Respondent was under a contractual duty to negotiate

timetables and protect individuals who raised patient safety concerns. The Respondent failed to comply with these terms and breached key terms of the Employment Contract.

216.  Conversely Mr. Alwitry acted pursuant to the terms of the Employment Contract

and his duties as a doctor. His contract should not have been terminated.

217.  It  is  denied  that  the  Respondent  was  "left  with  no  other  option  than  to

terminate". Even if Mr. Alwitry's conduct had been as poor as the Respondent alleges (which is denied) there were clearly other options available. Ms Haste and the Solicitor General both recognise that early dialogue by the Respondent with Mr. Alwitry could have prevented some issues.

218.  Mr. Alwitry on receiving the purported termination letter wrote to Mr. Downes

asking for an explanation "so we can hopefully get it resolved?" Mr. Downes unhelpfully  suggested  that  Mr. Alwitry  should  reflect  on  his  previous correspondence which was "virtually all" deemed to be unacceptable his alleged to decision to report Mr. Downes to the BMA. No further explanation or particulars were provided. Notwithstanding this Mr. Alwitry wrote a polite response explaining some of the difficulties he had had and suggested "we could sit round a table and thrash this out amicably" [MB/P190-191].

219.  Mr. Alwitry then on 4 December 2012 receives a letter from Mr. Riley stating

that since Mr. Alwitry had not taken up his post the disciplinary process would not be engaged and, regardless of where any fault lay, relations have broken down irrevocably and the best he could hope for was an ex gratia payment [MB/P213]. The Hospital and the Respondent resisted early resolution and their  approach  was  wholly  hostile,  oppressive,  disproportionate  and unreasonable.

220.  The Respondent and Ministers were misled by the Hospital because they were

under some misapprehension that they could forgo the disciplinary process if Mr. Alwitry did not take up his post. This was wrong, unlawful and against principles of natural justice. On any view it was not conduct befitting of a public body such as the Respondent.

221.  It is not a defence to act contrary to the law because the same was based upon

legal advice. The Respondent acted unlawfully, whether on the advice of its lawyers or not and whether or not that advice was accurate. The issue of the advice is a matter for the Respondent and its lawyers; it is not of concern to Mr. Alwitry nor does it affect the unlawfulness of the Respondent's acts.

222.  The "extraordinary level of scrutiny" is meaningless when it is premised on misleading and erroneous facts and when there has been no independent investigation. The suggestion that there was a "higher level of process" than

any usual dismissal decision making process is a red herring when the process  ignores the basics and proceeds in error. Fundamentally, it is nonsensical to contend that there was a "higher level of process" than usual when the subject of that process (Mr. Alwitry) was not involved at all until the decision to dismiss him had been reached behind closed doors and implemented.

Paragraph 66

223.  The complaint is clearly made out. There are currently no breach of contract

proceedings and the Respondent's reference to the same is not understood.

8.  The Board invited Advocate Ingram to deliver his closing statement as follows (this statement was submitted in writing due to time constraints) –

Introduction

1. Dr. Alwitry has raised a  complaint before the States of Jersey Complaints Board  that  the  termination  of  his  contract  of  employment  on 22 November 2012, is contrary to Article 9(2) of the 1982 Law.
2. It is the States' Employment Board's ("the Respondent") position that the Complainant's  contract  of  employment  was  terminated  in  an appropriate, proper  and reasonable manner and that Article 9(2) of the 1982 Law is not engaged.
3. At this early juncture in these submissions, the Respondent considers that it is important that the Board understand the premise upon which it conducted its case at the hearing on 16 March 2016.  The Respondent was instructed that the Board was only considering the discreet issue of the procedure adopted by

it  when  terminating  the  Complainant's  contract  of  employment.  The Respondent was expressly advised by e-mail from the secretary to the Board that issues such as the grounds for making the decision and in particular those which alleged patient safety issues, would not need to be addressed nor would form part of the hearing itself. The hearing explored various issues which the Respondent considers were outside of the discrete issue. Had it been aware that the hearing would take the course that it did, the Respondent would have

called various witnesses to deal with the issues discussed and importantly; filed additional documentation relevant to the Solicitor General's report dated 17 February 2014  and  the  States  of  Jersey  Independent  Case  Review, prepared by Paul Beal, dated March 2013 prior to the hearing.

4. The Respondent therefore respectfully  invites the Board  to carefully consider the papers before it and the evidence heard by the sole witness at the hearing, namely: Mr. Tony Riley. Should the Board consider that it requires additional assistance by way of further  submissions,  evidence  and  documentation,  the Respondent will provide the same expeditiously.
5. In order to assist the Board, the Respondent has chosen to provide it with redacted copies of the statements, handwritten notes and transcripts which were taken in order to produce the "Beal" and former Solicitor General's

reports  which  investigated  the termination of the Complainant's contract of employment.

6. The  Respondent  provides  the  documentation  further  to the  Royal  Court's judgment dated 25 February 2016, which concerned their disclosure to the Complainant. These documents had previously been withheld and therefore did not form part of the Respondent's bundle. However, given the above judgment and that these documents are now with the Complainant, it is the Respondent's position that without considering the documentation; the reports of Mr. Beal and  the  former  Solicitor  General  would  be  confusing  and  difficult  to understand.
7. The Respondent places reliance upon both reports and the witness evidence, which  underpins  both.  Therefore,  the  Board  is  invited  to consider  the documentation prior to reaching any decision.
8. As  above,  should  the  Board  require  additional  submissions,  evidence  or documentation the Respondent will oblige expeditiously.

Submissions

9. Much of the factual matrix behind the Respondent's decision to terminate the Complainant's contract of employment is in dispute. The Respondent therefore advances the following facts in support of its case that the decision was a proper and reasonable one and not contrary to Article 9(2) of the 1982 Law.
10. The States' Employment Board employs persons on behalf of the States of Jersey. It has the responsibility of employing persons to work at the hospital and the delivery of health and social services on the Island.
11. The  Complainant  is a  Consultant Ophthalmologist, who specialises in the treatment of eye conditions. He was brought up on Jersey and the States of Jersey paid for his medical training. He wanted to return to the Island and therefore applied for an advertised position as a Consultant in Ophthalmology at the Jersey General Hospital.
12. On 1 August 2012, the Complainant was offered the position of Consultant in Ophthalmology  following  an  interview  process  which  involved  other candidates. Following  some initial dialogue between the Complainant and Respondent, a contract of employment was signed by both parties on 21 and 24 August 2012, respectively. It is accepted by all parties that the contract was terminated by letter dated 22 November 2012.
13. Between  1 August  and  13 November 2012,  there  was  a  large  number  of discussions and  correspondence  between  the  parties  which  were  unusual given that the Complainant had yet to take his physical post at the hospital.
14. At the hearing, the Board heard evidence from Mr. Riley, who is a Director of  Human Resources at the Department of Health and Social Services. He assisted the Board by explaining that the Consultant position was advertised in  early  June  2012,  with  a closing date for applications on 22 June 2012. The  application  process  was  a  usual  one  and  there  were  no  specific peculiarities associated with it. The application process was supported by the

Royal  College  of  Ophthalmology  and  had  received  its  approval  and endorsement.

15. On 26 June 2012, four of the eleven candidates for the consultant position were selected  for  final  interview.  The  Complainant  was  one  of  the  four. Pre-interview  meetings  took  place  on  31 July 2012,  at  which  time  the Complainant met with both the Clinical Director of Ophthalmology and the Director  of  Hospital  Operations.  Formal  interviews  took  place  on 1 August 2012,  and  were  conducted  by  an  appointments  panel.  The Complainant was the successful candidate. He was informed of the panel's decision by telephone that afternoon.
16. A contract of employment was executed by 24 August 2012, and it is and was the Respondent's position that clinicians, which included consultants in the British Isles, were expected to start a new position within three months of  any  interview.  In  early  August 2012,  there  were  various  discussions concerning the Complainant's start date. The discussions principally took place between the Complainant and the Clinical Director,  wherein  the  Director emphasised the need for an early start date and one which was during that year. He was not prepared to entertain the six month delay required by the Complainant. The Board heard from Mr. Riley that a compromise of working three days per week between 1 December 2012 and 1 February 2013 was discussed to allow the fixing of a start date in 2012. Those discussions were only evidenced in part at the hearing using certain documentation. It was Mr. Riley's evidence that the discussions, even at this very early stage, started the breakdown in the  relationship  between  the  parties.  He  described  how the  demands  of  the Complainant  to  fix  a  start  date  to suit  his  personal agenda  became  strained  and  commenced  the  highly  unusual  and manipulative behaviour shown by the Complaint throughout.
17. It is the Respondent's position that the tenor, frequency and manipulation used within  the  discussions  and  correspondence  between  August  and 13 November 2012, allowed the  Hospital  to conclude  that  the  relationship between  the  parties  had  irretrievably broken  down. In  this  regard,  the Respondent  supports,  adopts  and  relies  upon  the findings of the former Solicitor General between paragraphs 106–142 of his report.
18. Mr. Riley gave evidence which supported the findings of the former Solicitor General, save that he emphasised that at the meeting which took place on 13 November 2012, in the office of the Managing Director of the Hospital he, Mr. Riley, was not influenced whatsoever by the Complainant's reference to the British Medical Association. Mr. Riley gave evidence that the decision  to terminate the Complainant's contract  of employment took place prior to the meeting and solely as a result of the breakdown in the relationship between the Complainant and the Respondent.
19. It was his evidence that by 10 November 2012, the relationship had become dysfunctional  and  had breached the  implied term of  trust  and confidence necessary for the proper performance of the contract itself, notwithstanding that the Complainant was yet to physically take his post at the hospital.