Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust

An employment contract is frustrated only where, without fault by the party relying on frustration, performance has become impossible or radically different from what was undertaken. The court must consider all relevant circumstances, including the contract, the nature and duration of the employment, the disabling circumstances, the prospects of recovery or resumed performance, and the employer’s need for the work. A realistic prospect of remedial training may prevent frustration. Contractual disciplinary procedures remain effective unless validly varied. Where dismissal would bypass those procedures and damages would be inadequate, injunctive relief may be granted even though trust and confidence have broken down.

The claimant was a consultant colorectal surgeon employed by the defendant NHS Trust. Following concerns about his clinical practice, he agreed to an assessment by the National Clinical Assessment Authority. The assessment recommended a clinical re-entry and re-skilling package. The Trust later asserted that the employment contract had been frustrated because the claimant could not safely resume his duties and that no realistic re-skilling placement remained available.

The claimant contended that the contractual disciplinary procedures still applied, that the contract had not been frustrated, and that the Trust should be restrained from dismissing him without following those procedures. The court determined the frustration issue and, if necessary, the claimant’s entitlement to injunctive relief.

1. Frustration. The Trust had not shown that the claimant’s contractual obligations had become incapable of performance. The length of the claimant’s absence was relevant but not determinative. His status as a highly trained specialist consultant, his long service, and the potentially catastrophic effect of termination meant that the Trust could reasonably be expected to wait longer than might be appropriate in other employment.
2. The crucial question was whether, at the date of judgment, there remained a realistic possibility of finding another NHS Trust willing to provide the recommended re-skilling. The evidence established that possibility. The contract therefore remained capable of performance and had not been frustrated.
3. The contractual disciplinary procedures had not been replaced by the Department of Health framework. Board-level adoption did not establish contractual variation, and the reference in the contract to disciplinary or capability procedures did not mean procedures which the Trust might later adopt. The claimant’s agreement to referral to the NCAA did not amount to agreement to surrender his contractual protections. The Trust remained obliged to follow the contractual procedures for serious disciplinary cases.
4. In any event, the Trust’s conduct had caused the loss of the proposed re-skilling opportunity at Guy’s & St Thomas’s. Its presentation of the claimant’s case was materially unbalanced. The alleged frustrating event would therefore have resulted from the Trust’s fault or default.
5. Injunctive relief. Although injunctions enforcing employment contracts are available only in unusual circumstances, the breakdown of trust and confidence was not an absolute bar. The claimant was not seeking immediate return to clinical work, and there remained a realistic possibility of re-skilling. It would be wrong to deprive him of the contractual opportunity to answer the allegations and justify himself.
6. Damages were inadequate because dismissal would deprive the claimant of the disciplinary process, employment which he might be unable to replace within the NHS, and the opportunity for professional vindication. Injunctive relief was therefore appropriate in principle. The form of order was reserved for further submissions.

Not stated in the judgment.