D'Sa v University Hospital Coventry & Warwickshire NHS Trust

A contractual disciplinary procedure for serious professional misconduct must be applied according to its structure and purpose. Where an inquiry panel determines the misconduct and recommends a sanction, the decision-maker may consider the gravity of that misconduct, proved or admitted previous misconduct, and proper personal mitigation. Adverse matters not found by the panel cannot ordinarily be introduced at the sanction stage. A general breakdown of trust and confidence does not permit an employer to impose dismissal for misconduct where that breakdown has not been established against the employee through the contractual procedure. Broad wording such as “depending upon the circumstances” does not authorise consideration of unproved matters unrelated to the investigated misconduct.

The claimant, a consultant surgeon employed by the defendant NHS trust, was suspended and investigated under the trust’s contractual medical and dental disciplinary procedure. An inquiry panel rejected one allegation and found part of another allegation of serious professional misconduct proved. It recommended a first written warning and stated that dismissal would be unjustified.

Before the disciplinary hearing, the trust sought to rely on matters described as mitigation, including allegations concerning a breakdown of trust and confidence and a letter written by the claimant to a Member of Parliament. Blofeld J granted an injunction restraining reliance on matters outside the panel’s findings. The trust appealed, contending that the procedure permitted the Chief Executive to consider wider circumstances when deciding the sanction.

1. Appeal dismissed. The disciplinary procedure formed part of the claimant’s contract of employment and constituted a code for determining whether serious professional misconduct had occurred and, if so, imposing a sanction.
2. Per May LJ, the Chief Executive’s power to decide the sanction was constrained by the inquiry panel’s findings. Matters adverse to the practitioner had to be limited to matters which the panel had found established. Otherwise the practitioner would effectively be sentenced for misconduct which had not been proved through the contractual procedure. Proper mitigation and necessary background could be considered.
3. Per Dyson LJ, the phrase “depending upon the circumstances” in paragraph 5.11 had to be read in context. It covered the seriousness of the specific misconduct, proved or admitted similar misconduct, length of service and personal mitigation. Very clear words would have been required before entirely unrelated matters could be considered. A breakdown of trust and confidence was not a relevant circumstance under this procedure, particularly where responsibility for it might rest with the employer.
4. Per Simon Brown LJ, the trust’s proposed construction would permit dismissal for a relatively minor proved offence, despite the panel’s recommendation of a first written warning, on the basis of an unproved breakdown of confidence. That consequence was manifestly unfair and unsupported by the authorities cited.
5. The trust’s management case sought to introduce a more serious case than that found by the inquiry panel. Reliance on those matters at the disciplinary hearing would breach the procedure and natural justice. The injunction was therefore upheld.

Appeal dismissed with costs; detailed assessment of both parties’ costs.

• Court of Appeal (Civil Division): The appeal from Blofeld J in the Queen’s Bench Division was dismissed with costs.
• Queen’s Bench Division: Blofeld J granted an injunction restraining the trust from relying at the disciplinary hearing on allegations and matters not established by the inquiry panel.