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The claimant doctor (H) brought a claim for breach of contract against the defendant NHS trust concerning her exclusion from work and a disciplinary procedure brought against her. H worked for the trust as a consultant paediatrician. Her contract was subject to a staff disciplinary procedure and a practitioners’ disciplinary procedure, which mirrored the terms of “Maintaining High Professional Standards in the Modern NHS” issued by the secretary of state. H had examined a baby (X) and reported that she had no concerns about her. X was later taken into care after she was found to have three fractured ribs, a possible non-accidental injury. H was immediately excluded from work because of concerns about her clinical judgment. A formal exclusion followed. Other allegations were made including that H had made entries in X’s medical notes which were not contemporaneous. The trust convened a hearing under the staff procedure to hear the conduct allegations, and intended to hear the capability allegations separately under the practitioners’ procedure. H remained excluded. The court was required to determine whether (i) the practitioners’ procedure was contractual (ii) H should have been excluded from work (iii) the trust was entitled to deal with the conduct allegations separately.

HELD: (1) There was no single test as to whether an employer and employee intended to agree that provisions of an agreement such as the practitioners’ procedure should be contractual between them. The indicia that it was to have contractual effect included: (a) the importance of the provision to the contractual working relationship; (b) the level of detail prescribed by the provision; (c) the certainty of what the provision required; (d) the context of the provision; (e) whether the provision was workable. The trust had accepted that some aspects of the practitioners’ procedure were of contractual effect, since it was not otherwise entitled to exclude H and bring disciplinary proceedings against her. It followed that the provisions about when and in what circumstances the trust was entitled to order her exclusion, and convene a conduct hearing, were also of contractual effect, Hameed v Central Manchester University Hospitals NHS Foundation Trust (2010) EWHC 2009 (QB), (2010) Med LR 412 and Alexander v Standard Telephones & Cables Ltd (No2) (1991) IRLR 286 Ch D applied (see paras 153, 159, 166-170 of judgment). (2) H’s exclusion had been justified on the basis of concerns about her capability rather than concerns about dishonesty and misconduct. Restricting her non-clinical work and excluding her from all clinical work was therefore unjustified. The case of X would only have given rise to concerns about her capability in diagnosing non-accidental injuries to children. Even after the misconduct allegations were made, it was not necessary or reasonable to prevent her from doing any work at all, to exclude her from trust premises and to prevent her from having any access to colleagues. No alternatives to full exclusion had been considered. The trust had disregarded not only the letter but the spirit and objective of Maintaining High Professional Standards, mirrored in the practitioners’ procedure: that any restrictions on a practitioner should be the minimum justified in order to fulfil the purpose of the decision to exclude her. The trust had therefore breached H’s contract of employment, and was still in breach by continuing to restrict her practice (paras 85, 88-94). (3) The reasons for dealing separately with the allegations about misconduct were overwhelming. The alternative would be for them to remain unresolved while there was an assessment of H’s capability and an action plan was drawn up, a procedure that would not take less than six months. Such delay in resolving the allegations of misconduct made against H was unthinkable (paras 104, 120-122). (4) The trust had acted unreasonably by classifying some of the charges as “conduct” when they related to capability, Skidmore v Dartford and Gravesham NHS Trust (2003) UKHL 27, (2003) 3 All ER 292 considered and Abu Dhabi National Tanker Co v Product Star Shipping (The Product Star) (No2) (1993) 1 Lloyd’s Rep 397 CA (Civ Div) applied. However, that did not vitiate the trust’s decision to deal with the conduct matters separately, and the trust had subsequently provided H with amended charges (paras 106, 113-115, 133).

Counsel for the claimant: Giles Powell, Nicola Newbegin

Counsel for the defendant: Mark Sutton QC, Ben Cooper