EAT dismisses breach of contract claim against NHS Trust27/11/18
The EAT has handed down Judgment in a case in which Capsticks successfully defended an NHS Trust against a claim brought by a consultant.
The Judgment provides helpful guidance on the distinction made in Maintaining High Professional Standards (MHPS) between professional and personal misconduct.
In the case of Idu v East Suffolk and North Essex NHS Foundation Trust (formerly the Ipswich Hospital NHS Trust), the Claimant argued that the Trust was in breach of her contract of employment, and her dismissal was unfair, because it had failed to follow the provisions set out in MHPS in the Modern NHS and in the Trust’s internal policy. Ms Idu argued that the allegations of misconduct made against her should have been characterised as “professional misconduct”, obliging the Trust to ensure that the case investigator obtained appropriate independent professional advice, and that an independent, medically qualified person sat on the disciplinary panel.
The Claimant was a consultant in Emergency Surgery. She was summarily dismissed in May 2016 following a disciplinary investigation into a number of complaints and concerns raised against her, for example that (1) she had refused, and continued to refuse, to accept a management instruction to stop referring to herself or holding herself out as the Clinical Lead for Emergency Surgery; (2) she had refused to follow a reasonable management instruction to provide cover for a ward for the day of the junior doctors’ strike or to provide an appropriate explanation for this refusal; and (3) she had refused to provide an explanation for listing patients for surgery, who had been waiting fewer than 18 weeks rather than those which may have breached (or may be about to breach) the 18 week target.
The Claimant brought claims against the Trust for unfair dismissal, unlawful deductions from wages, sex and race discrimination, and dismissal and detriment on the grounds of whistleblowing. Of particular importance, she argued that the allegations should have been treated as professional rather than personal misconduct. The Employment Tribunal (ET) dismissed her claims, finding that the disciplinary allegations all concerned the Claimant’s personal conduct. The Claimant appealed the finding that she had been fairly dismissed to the Employment Appeal Tribunal (EAT).
The EAT looked at previous, competing Judgments on this issue and found that the ET was entitled and right to find that the misconduct allegations against the Claimant had nothing to do with the exercise of her “clinical or professional conduct or competence”. The EAT stressed that the mere fact that it is a doctor who is alleged to have committed misconduct is insufficient by itself to lead to the conclusion that the conduct in question is professional misconduct.
The EAT expressed its view that professional conduct for the purposes of MHPS should be construed broadly and covers not only clinical conduct but the full range of a medical professional’s responsibilities. However, it made clear that the purpose of the distinction in MHPS is to determine whether an independent medically qualified person needs to be on the disciplinary panel in order for it properly to reach an informed decision. It accepted the findings of the original Tribunal, that this would have been of no benefit in respect of all of the allegations relating to Ms Idu, and therefore the EAT was satisfied that the ET could properly conclude that these were matters of personal misconduct
What to take away
This decision is a welcome one for NHS employers. It provides clarity on the distinction between personal and professional misconduct and makes clear that the presence of an external, medically qualified panel member will only be required where it is of some use. However, the case serves as a reminder that Trusts must proceed with caution when categorising allegations against a doctor and be mindful of the issues that a panel will need to explore in determining them.