Skidmore v Dartford & Gravesham NHS Trust

Disciplinary categorisation under Disciplinary Procedures for Hospital and Community Medical and Dental Staff (HC (90)9), where incorporated into an employment contract, is a matter of contractual construction. The employer must apply the Circular's definitions of personal conduct, professional conduct and professional competence.

Personal and professional conduct may overlap. Where behaviour arises from the exercise of medical skills, the professional-conduct procedure must be used because it provides safeguards that should not be lightly disregarded. The inquiry considers whether the conduct concerns the medical performance itself, a professional duty to communicate, or issues requiring medical expertise.

The appellant, a consultant surgeon, was dismissed for gross personal misconduct after the respondent concluded that he had misled a patient, her family, the Community Health Council and the Trust's chief executive about an operation, blood loss and an allegedly defective trochar.

The Employment Tribunal rejected his unfair-dismissal claim, and the Employment Appeal Tribunal dismissed his appeal. The issue before the Court of Appeal was whether the allegations constituted personal or professional conduct under the disciplinary arrangements incorporated into his contract, and therefore which disciplinary procedure applied.

Appeal allowed unanimously. Lord Justice Keene gave the leading judgment. Sir Christopher Slade and Lord Justice Aldous agreed.

1. The employer had to determine the applicable disciplinary procedure in accordance with the employment contract. The definitions in HC (90)9 were incorporated into that contract and had to be properly applied. Unless the contract provided otherwise, categorisation was a matter of contractual construction, not a public-law discretion governed by judicial-review reasonableness principles. This approach was consistent with Dr B v X NHS Trust [2000] Lloyd's Rep Med 324 and Saeed v Royal Wolverhampton Hospitals NHS Trust [2000] All ER (D) 2387.

2. The Circular defined professional conduct as performance or behaviour arising from the exercise of medical skills. Professional conduct was distinct from professional competence, which concerned the adequacy of professional performance and judgment. The categories of personal and professional conduct could overlap. Where the professional-conduct definition was satisfied, the professional-conduct procedure had to be used because its safeguards were not to be lightly disregarded.

3. The relevant inquiry was directed to the conduct complained of. Three matters were significant: whether the operation was the subject matter of the alleged misconduct rather than merely its occasion; whether the conduct arose while the practitioner was fulfilling a professional responsibility to communicate about the treatment; and whether medical experience or expertise was required to assess the allegations.

4. The allegations concerned lies about the performance of the operation. The surgeon was expected to explain the unexpected event to the patient, the general practitioner and the Trust. At least part of the explanation concerning blood transfusion required medical expertise. The allegations therefore constituted professional conduct, and the Trust had used the wrong procedure.

The decisions of the Employment Appeal Tribunal and Employment Tribunal were set aside. The unfair-dismissal complaint was remitted to an Employment Tribunal for reconsideration on the basis that the wrong procedure had been used. The respondent was ordered to pay the appellant's costs of the appeal.

1. Court of Appeal (Civil Division): [2002] EWCA Civ 18. Allowed the appeal, set aside the decisions below and remitted the unfair-dismissal complaint.
2. Employment Appeal Tribunal: dismissed the appellant's appeal on 22 February 2001.
3. Employment Tribunal: rejected the appellant's claim of unfair dismissal.