CASE OF DARNELL v. THE UNITED KINGDOM
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
C. Russo;John Freeland;N. Valticos;B. Walsh
6. The applicant, Dr Royce Darnell, who was born in 1929, has been unemployed since the Trent Regional Health Authority ("the RHA") terminated his employment as a consultant microbiologist and Director of the Public Health Laboratory in Derby. This case concerns the length of time that proceedings relating to this dismissal have taken. 7. Following administrative changes in the National Health Service in 1977, management problems arose in many regions including the Trent RHA. As a result of differences over staff appointment procedures, in October 1979 a local grievance procedure was initiated against Dr Darnell before the Area Health Authority ("the AHA") by the Association of Scientific, Technical and Managerial Staffs. Although Dr Darnell was considered by the British Medical Association’s legal department to have been acting within the terms of the Government’s guidelines in Health Service Circular (IS) 16, the AHA endorsed the new appointments procedure. 8. Following further disagreement, a formal complaint was made in December 1980 by the AHA to the Trent RHA alleging non-compliance with laboratory staff appointment procedures. Dr Darnell was informed by letter of 19 March 1981 that a sub-committee had been set up to deal with the AHA’s formal complaint. After various investigations had been carried out, a disciplinary procedure under circular HM (61) 112 was instituted against Dr Darnell by the Trent RHA. By letter of 25 June 1982 he was suspended from duty pending the outcome. 9. After attempts to settle the case had failed, a panel of inquiry sat for thirty-two days between June and August 1983. It reported in December that the applicant was at fault in certain respects. A sub-committee subsequently appointed by the Trent RHA recommended that Dr Darnell’s employment as a consultant microbiologist be terminated. Accordingly, by letter of 16 May 1984 from the Trent RHA, the applicant was dismissed on three months’ notice with effect from 19 August 1984. 10. The applicant appealed to the Secretary of State against his dismissal on 23 May 1984. A professional committee was appointed in accordance with paragraph 190 of the Terms and Conditions of Service of Hospital Medical and Dental Staff. The paragraph 190 procedure has since been replaced by a new procedure which incorporates time-limits into the various stages of an appeal to the Secretary of State against dismissal. After holding a hearing on 14 May 1985, the professional committee reported to the Secretary of State who, in September 1985, sought further information. 11. The Secretary of State directed the RHA to offer Dr Darnell a new post in the region without managerial responsibility. In reaching this decision the Secretary of State had noted that the professional committee had been very critical of the handling of the case. The RHA challenged this direction. The applicant was informed by the Department of Health and Social Security ("the DHSS") that in view of the unavailability of alternative employment, the case had been remitted to the Secretary of State who, not being bound by the professional committee’s recommendation to allow the appeal, had decided that the termination of Dr Darnell’s services in accordance with the paragraph 190 procedure should be confirmed. 12. By judicial review proceedings commenced in the High Court on 24 April 1986, the applicant challenged the fairness of the procedure leading to the Secretary of State’s decision. The High Court granted a declaration that this decision was invalid and indicated that the Secretary of State should reconsider the matter. The Secretary of State did not appeal. 13. On 25 October 1986 the applicant informed the DHSS that he now sought a further paragraph 190 hearing. An exchange of correspondence took place. The DHSS attempted to convoke an ad hoc committee meeting, but this was cancelled as the applicant refused to accept such a compromise. On 29 February 1988, having proceeded on the basis of the written material which included further written submissions, the Secretary of State decided to confirm the applicant’s dismissal. Accordingly, by letter of 18 March 1988, the DHSS informed the applicant that, on the basis of the professional committee’s report of 25 July 1985 and the written submissions made by Dr Darnell and the Trent RHA, re-employment was not a possibility and termination of his services was effective from the date of that letter. 14. The applicant’s application for judicial review of the validity of the Secretary of State’s direction was dismissed on 3 November 1988. 15. In the meantime, the applicant had also sought reinstatement, re-engagement and damages for dismissal by proceedings in the Industrial Tribunal. Two applications had been made to the Tribunal, the first on 10 August 1984 following his dismissal in May of that year and the second in May 1986 following the Secretary of State’s initial rejection of his appeal against dismissal. These proceedings had been stayed from time to time at the applicant’s request, pending the results of the appeal to the Secretary of State and the judicial review proceedings. In November 1988, the second Industrial Tribunal application was revived and the first was subsequently withdrawn. A pre-hearing assessment took place on 6 February 1989 in which the Tribunal determined that a hearing could take place with no cost consequences to the applicant. In its reserved decision of 23 February 1990, the Tribunal held that the dismissal of the applicant was not unfair. It had not been persuaded that the applicant had in any way been prejudiced by the time which had elapsed until a decision was finally reached. He had been paid his salary in full until March 1988. 16. The applicant’s appeal to the Employment Appeal Tribunal was dismissed on 8 April 1993. 17. In June 1988 a separate action in the High Court claiming damages for the applicant’s suspension from work in June 1982 pending the outcome of the disciplinary procedure was struck out as it disclosed no reasonable cause of action. An appeal against the striking out was dismissed in 1990.