Chan v Barts & the London NHS Trust

An employee’s contractual right to appeal against termination may be removed by subsequently incorporated national terms, provided the contractual mechanism validly incorporates amendments. Loss of the right does not require unusually prominent notice where the change is neither fundamental nor onerous. Gross misconduct is a convenient shorthand for conduct amounting to a repudiatory breach of the employment contract. The misconduct need not fall within examples listed in a disciplinary policy. A procedural defect in an initial disciplinary hearing may be cured on appeal where the employee had a fair opportunity to address the substance of the allegations and the appeal genuinely considers the relevant material. A contractual appeal procedure limited to termination during a period of notice does not apply to summary dismissal.

Dr Otto Chan, a consultant radiologist employed by the defendant NHS Trust, was summarily dismissed after an inquiry found serious misconduct involving disruptive behaviour, inappropriate disclosures and attacks on colleagues and the Trust’s training programme. He sought declarations that his original contract preserved a right of appeal to the Secretary of State under paragraph 190 of the national terms and that his dismissal was ineffective or a repudiatory breach.

The Trust contended that Dr Chan had accepted the new consultant contract, that later disciplinary arrangements had replaced the paragraph 190 procedure, and that his conduct justified summary dismissal. The central issues concerned the applicable contract, the disciplinary procedure, the character of his conduct, procedural fairness, and the availability of declaratory relief.

1. The claim was dismissed. Dr Chan had no contractual right to appeal to the Secretary of State. His original appointment letter incorporated national terms as amended from time to time. The subsequent removal of the paragraph 190 appeal right was not so fundamental, onerous or unusual as to require explicit notification.

2. In any event, Dr Chan had accepted the new consultant contract. Objectively, the parties acted from May or June 2004 as though the new terms applied. The Trust paid increased salary and back pay calculated under the new contract, Dr Chan accepted those payments without qualification, continued working on that basis, and did not pursue the available job-plan appeal. At least from August 2005 there was also an agreed job plan.

3. The conduct found by the Inquiry Panel amounted to gross misconduct. That expression was a convenient shorthand for conduct constituting a repudiatory breach of the employment contract. The examples of gross misconduct in the disciplinary policy were non-exhaustive. Dr Chan’s conduct destroyed the necessary relationship of trust and confidence and amounted, in particular, to insubordination and conduct calculated or likely to bring the Trust into disrepute.

4. Good practice required an express warning that summary dismissal was being considered. However, Dr Chan, who was legally represented, should have appreciated that possibility from the seriousness of the findings. The initial procedure was defective because he was not given the promised opportunity to make further mitigation and was not invited to address information obtained by the disciplinary panel. The defect was cured by the appeal hearing: the accepted findings of fact were not reopened, the additional material was considered, and Dr Chan had an opportunity to present it before the final decision. The principles in Calvin v Carr [1979] 2 All ER 440 applied; this was not a case where the employee had been deprived of an opportunity to answer the allegations, unlike Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] EWHC 2407.

5. Paragraph 190 was inapplicable to summary dismissal because there was no period of notice during which an appeal could be exercised. The remedy for any wrongful summary dismissal would have been damages.

6. Declaratory relief would not have been granted in any event. The court should be cautious before granting relief which may require specific performance of an employment contract, particularly where the employee’s conduct had made continued working relations impracticable.