DHSC loses appeal over tribunal's decision to hold disclosure hearing

Three day hearing will start on Tuesday

The Department of Health and Social Care has lost its appeal against an employment tribunal’s decision to hold a disclosure hearing in relation to the unfair dismissal of the Island’s former medical director.

The DHSC claimed the tribunal was acting outside its jurisdiction by seeking evidence on how documents were submitted to the hearing.

Jeremy Callin, representing the DHSC, also questioned whether the tribunal has the power to call specific witnesses but Deemster Andrew Corlett said a document filed by the department's previous lawyers had agreed to the scope of the hearing.

Mr Callin explained that the DHSC has had to bring in a new legal team after Anna Heeley of the Attorney General's Chambers was asked to give evidence to the tribunal. 

This is also subject to an appeal - with the DHSC stating Miss Heeley would be asked to break legal privilege if she gives evidence.

The court was told that while the Attorney General's Chambers were representing the department it had complied with the tribunal's order for the disclosure hearing with Mr Callin's team only filing their appeal on 15 August.

The deemster found that feedback from the Attorney General's team had been factored in to the tribunal's order, and that it had been agreed with the AG's chambers that the tribunal would want to determine the role disclosure played in this case before awarding damages.

Mr Callin urged the deemster to quash the order from the tribunal calling next week's hearing and instead instruct the tribunal to set a new date with a narrower remit.

Dr Ranson's lawyer, Peter Russell, conceded that describing next week's proceedings as a 'special disclosure hearing' was unfortunate, but insisted it was within the tribunal's jurisdiction.

Deemster Corlett told the appeal the tribunal had not descended into an inquisitorial role and that there was no sustainable foundation for the appeal.

Mr Callin had described the tribunal as being 'on a frolic of its own' but Deemster Corlett said the only sensible interpretation of the tribunal's order was that it was seeking to establish whether the disclosure of documents would be a factor in the damages to be awarded to Dr Ranson.

Deemster Corlett ruled that this is within the remit of the tribunal and therefore there is no reason not to allow the three-day hearing to proceed on Tuesday next week (30 August).

The hearing will cover a range of issues relating to disclosure including whether documents were concocted by the department, the lateness of paperwork and destruction of documents.

It will also be able to consider how the department complied with a data subject access request after Deemster Corlett ruled that it is now an error of law for the tribunal to consider this, despite Mr Callin having said it is a matter for the Information Commissioner.

Mr Russell confirmed Dr Ranson will be seeking costs for the appeal from the DHSC with applications to be submitted at a later date.

The tribunal has a further hearing scheduled in January to consider remedy after it ruled earlier this year that Dr Ranson had been unfairly dismissed as a result of whistleblowing.