Dhasmana, R (on the application of) v Secretary Of State For Health & Anor

An appeal under paragraph 190 of the National Health Service Terms and Conditions of Service is available only where the practitioner’s appointment is still within its period of notice when the appeal is lodged. A dismissal without notice terminates the contract immediately, even if the employer is in breach and offers payment in lieu of notice. The court cannot imply a term deeming the notice period to continue in order to preserve an appeal right. The provision both confers and limits the Secretary of State’s jurisdiction. Where the contract has already ended, the Secretary of State has no jurisdiction to entertain the appeal, and questions of bias, legitimate expectation or adequacy of reasons do not arise.

The claimant, a consultant cardiac surgeon, was dismissed by an NHS Trust after professional misconduct proceedings before the General Medical Council. His contract provided for three months’ notice and incorporated paragraphs 190 and 198 of the National Health Service Terms and Conditions of Service. The Trust dismissed him with immediate effect and paid money in lieu of notice.

After an unsuccessful internal appeal, he appealed to the Secretary of State under paragraph 190. The Secretary of State held that the appeal was inadmissible because the contract had ended before the appeal was lodged. Gibbs J and Scott Baker J refused permission for judicial review. The claimant renewed the application before the Court of Appeal, challenging the construction of paragraph 190 and raising related arguments concerning breach of contract, reasons, bias and legitimate expectation.

1. Application refused. The claimant’s contract was terminated by the dismissal letter in September 1998, before his appeal to the Secretary of State was lodged on 7 December 1998. Payment in lieu of notice did not preserve the employment relationship. The same result followed whether or not the payment was accepted.
2. Paragraph 190(a) provides an appeal for a consultant who considers that his appointment is being unfairly terminated, by sending a notice of appeal during the period of notice of termination. The words defining when the appeal may be brought form part of the sentence conferring jurisdiction. They cannot be treated as merely procedural while the rest of the provision is treated as substantive.
3. Paragraph 190(k), which prevents termination taking effect while a duly made appeal is under consideration, confirms that the appeal machinery assumes a continuing employment relationship when the appeal is initiated. Paragraph 197(c), permitting waiver of notice or acceptance of payment in lieu, is consistent with immediate termination.
4. The decision in R v Secretary of State for Health and Trent Regional Health Authority, ex parte Guirguis [1990] IRLR 30 established that paragraph 190 does not apply to a practitioner summarily dismissed for misconduct. Although the present case did not involve dismissal for misconduct, the court reached the same jurisdictional conclusion by applying the contractual effect of an immediate dismissal with payment in lieu.
5. The argument that the employers should not benefit from their own breach failed. The issue was the proper construction of paragraph 190, not the acquisition of contractual rights by reliance on a wrong. The court would not imply a term deeming the notice period to remain current after lawful contractual termination had not occurred.
6. Since the Secretary of State had no jurisdiction, any complaint about the adequacy of his reasons was futile. Bias and legitimate expectation issues did not arise. Permission to appeal was refused with costs.

• High Court, Administrative Court: Gibbs J refused permission for judicial review on the papers. Scott Baker J subsequently refused permission after hearing argument.
• Court of Appeal (Civil Division): Lord Justice Laws refused the renewed application for permission to appeal and ordered costs.