Skidmore (Respondent) v. Dartford & Gravesham NHS Trust (Appellants).

An employer must initially select the applicable contractual disciplinary procedure, but its classification is not final merely because the contract says that the employer is to decide the category. The classification must comply with the contractual definitions and is reviewable by the court in an action for breach of contract.

Under the disciplinary code, personal conduct is the residual category. Conduct associated with the exercise of medical or dental skills falls within professional conduct or professional competence and attracts the more formal procedure. The definitions require a broad and purposive construction. Deliberate misconduct by a doctor in the doctor-patient relationship, including false accounts of an operation, may amount to professional conduct even if it could also be described as personal misconduct.

The respondent, a consultant surgeon, was dismissed summarily after the Trust found that he had deliberately given false accounts of a serious operation to the patient, her family and others. The Trust treated the allegations as personal conduct and used its internal disciplinary procedure rather than the more formal procedure in HC (90)9 for professional conduct or competence.

An industrial tribunal dismissed his unfair-dismissal complaint and the Employment Appeal Tribunal dismissed his appeal. The Court of Appeal unanimously allowed his further appeal, holding that the contractual definitions governed the categorisation and that the allegations concerned professional conduct: [2002] EWCA Civ 18; [2002] ICR 403. The House considered who determines the applicable category and whether these allegations fell within it.

1. Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lords Bingham, Hutton and Scott expressly agreed with it, and Lord Clyde also agreed while adding guidance on the categorisation exercise. The Trust had used the wrong contractual procedure. The Employment Appeal Tribunal's decision was quashed and the unfair-dismissal complaint was remitted to an employment tribunal.

2. Per Lord Steyn, the Trust had to make the initial choice of disciplinary route, but its choice had to conform to the contract. The statement in Annex B that it was for the Authority to decide the category did not confer a final and unreviewable discretion. It simply required the Authority to initiate the appropriate procedure. A non-conforming choice was a breach of contract, with the ordinary contractual remedies available.

3. The House rejected the approach in Kramer v South Bedfordshire Community Health Care Trust [1995] ICR 1066 and Chatterjee v City and Hackney Community Services NHS Trust (1998) 49 BMLR 55. Those cases gave excessive weight to the wording assigning the initial categorisation to the employer and implied an unwarranted finality term. The House agreed in substance with the contractual approach in Saeed v Royal Wolverhampton Hospitals NHS Trust [2001] ICR 903.

4. Professional conduct and professional competence were the primary categories under HC (90)9. Personal conduct was residual, covering behaviour due to factors other than those associated with medical or dental skills. If conduct fell within either professional category, the formal procedure was mandatory even where the conduct might also be characterised as personal misconduct.

5. Lord Steyn held that the definitions required a broad and purposive construction. The House disapproved the proposition in Saeed that an indecent assault during a medical examination could not be professional misconduct. A doctor may misuse ostensible medical skills for an improper purpose. Here the alleged lies concerned the operation itself, arose from the surgeon's professional responsibility to explain it, and could require medical experience to assess. They were therefore professional conduct.

6. Lord Clyde explained that the labels personal conduct, professional conduct and professional competence add little beyond their definitions. The practical first question is whether the conduct is due to factors associated with medical or dental skills. If it is, the remaining choice is between conduct and competence; if it is not, the personal-conduct procedure applies.

• House of Lords: dismissed the Trust's appeal, affirmed the Court of Appeal's conclusion that the wrong disciplinary procedure had been used, quashed the Employment Appeal Tribunal decision, and remitted the unfair-dismissal complaint to an employment tribunal: [2003] UKHL 27.

• Court of Appeal: unanimously allowed the doctor's appeal from the Employment Appeal Tribunal, holding that the categorisation had to comply with the contract and that the allegations involved professional conduct: [2002] EWCA Civ 18; [2002] ICR 403.

• Employment Appeal Tribunal: dismissed the doctor's appeal on 22 February 2001, accepting that the employer's categorisation was final absent bad faith or Wednesbury unreasonableness and, alternatively, that the matter was personal in nature.

• Industrial tribunal: by a majority, dismissed the unfair-dismissal complaint on 4 August 1999.