Skidmore v Dartford & Gravesham NHS Trust

The House of Lords held that the disciplinary categorisation under Department of Health Circular HC(90)9 is a contractual matter: the employing authority must decide which category applies but must do so in accordance with the contract. The employer’s choice is not immune from judicial review as a matter of contract simply because the contract states that the authority decides the category. There was no term in the contract making the employer's determination final and beyond contractual challenge.

The Court adopted a broad and purposive construction of the HC(90)9 definitions. Conduct that "arises from the exercise of medical or dental skills" falls within professional conduct and attracts the more rigorous procedures in the Circular even if the same conduct might also be described as personal misconduct. On the facts, deliberate lies by a surgeon about significant matters arising from an operation were properly categorised as professional conduct. The Trust therefore breached the contract by using the less formal personal conduct procedure and the dismissal must be reconsidered by an employment tribunal on that basis.

This was an appeal from the Court of Appeal concerning the correct disciplinary procedure under Department of Health Circular HC(90)9 incorporated into most NHS hospital doctors' contracts. The respondent, a consultant surgeon, was dismissed after internal disciplinary proceedings brought by the Trust which characterised the allegations as "personal conduct" rather than "professional conduct". The central issues were (i) who decides the category for disciplinary purposes and (ii) how to draw the line between professional conduct and personal conduct.

The facts: following a serious intra-operative incident in which a patient suffered major blood loss but recovered, the surgeon is alleged to have given accounts to the patient, her husband and management that conflicted with contemporaneous notes; the Trust charged him with deliberately misleading the patient, her family and management. The Trust's Chief Executive heard the matter and dismissed him summarily; an internal appeal panel upheld dismissal. An Annex C referral to the Secretary of State was refused. The respondent pursued unfair dismissal proceedings which the tribunal dismissed; the Employment Appeal Tribunal dismissed an appeal; the Court of Appeal allowed the doctor's appeal, holding the matter to be professional conduct.

The House of Lords framed the issues as contractual questions. It rejected the submission that the employer’s categorisation was final by implication of an implied term of the contract: there was no contractual provision excluding the court’s role and no basis for implying such a decisive term. The definitions in HC(90)9 were to be read purposively and broadly: professional conduct covers behaviour arising from the exercise of medical skills, and that category must be used where conduct is linked to the exercise of those skills. Where conduct is properly professional it attracts the more formal, judicialised procedures under the Circular.

Applying that approach, the House held that lies told by a doctor about material aspects of an operation arose from the exercise of medical skills and therefore amounted to professional conduct. The Trust had therefore breached the contractual disciplinary code by applying the personal conduct procedure. The appeal was dismissed and the matter remitted to an employment tribunal to reconsider the unfair dismissal complaint on the correct procedural basis.

The appeal is dismissed. The Trust's decision to treat the allegations as personal conduct was in breach of the contractual disciplinary code: the employer must decide categorisation in accordance with the contract, and the definitions in HC(90)9 must be given a broad, purposive interpretation so that deliberate falsehoods by a doctor about an operation amounted to professional conduct; the dismissal is remitted for reconsideration by an employment tribunal.

Dismissal by Trust (Chief Executive) and internal appeal panel (1997); Annex C referral to Secretary of State refused (letter dated 11 June 1998, relying on R v Secretary of State for Health, Ex p Guirguis [1990] IRLR 30); industrial tribunal dismissed unfair dismissal claim (4 August 1999); Employment Appeal Tribunal dismissed appeal (22 February 2001); Court of Appeal allowed the doctor's appeal [2002] ICR 403; House of Lords dismissed the Trust's appeal [2003] UKHL 27.