Hameed v Central Manchester University Hospitals NHS Foundation Trust

Disciplinary procedures incorporated into an NHS doctor’s employment contract may create enforceable contractual obligations, although vague, advisory or administrative provisions may not. A contractual obligation to conduct a disciplinary hearing fairly is sufficiently certain to be actionable as an express term.

The implied term of mutual trust and confidence cannot impose a general duty of fairness in the act of dismissal. It does not, however, prevent claims for breach of independently existing contractual terms or for antecedent breaches.

Article 6 of the ECHR is engaged only in exceptional employment disciplinary proceedings which effectively determine the right to practise a profession. Ordinary NHS disciplinary proceedings determining employment with one Trust do not necessarily engage it.

The claimant, a staff grade ophthalmologist, was dismissed for gross misconduct after an investigation and disciplinary hearing concerning the alleged use of non-sterile surgical scissors and alleged attempts to influence witnesses. She had previously been excluded from work for 17 weeks.

She claimed that the Trust had breached contractual disciplinary procedures, that the procedures were unlawful and that the dismissal was void. She also argued that Article 6 of the ECHR required an independent and impartial tribunal.

The central issues were whether the Trust Procedure formed part of her employment contract, whether particular procedural requirements were breached, whether Article 6 applied, and whether any breach affected the dismissal or entitled her to a remedy.

1. Contractual status of the procedure. Paragraph 189a of the standard NHS Terms and Conditions expressly incorporated the Trust Procedure into the claimant’s contract. Applying Alexander v Standard Telephones and Cables Ltd (No 2) [1991] IRLR 286, not every provision was contractual. Vague or discursive provisions were not apt to create enforceable obligations. Most provisions, however, were legally binding. The conclusion was supported by Skidmore v Dartford and Gravesend NHS Trust [2003] UKHL 27.
2. Fairness and dismissal. The implied term of mutual trust and confidence could not extend to a general requirement of fairness in a disciplinary process leading to dismissal. That was the effect of Johnson v Unisys Ltd [2003] 1 AC 518. Independently existing express contractual terms remained actionable. The requirement in paragraph 13.1.3.3 that the hearing be conducted fairly was sufficiently certain and was an express contractual term. The reasoning in Eastwood v Magnox Engineering plc; McCabe v Cornwall County Council [2005] 1 AC 503 and Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571 supported that distinction.
3. Article 6. The claimant’s dismissal did not effectively bar her from practising medicine or obtaining NHS or private employment. Her case was materially different from the exceptional circumstances discussed in the obiter observations in Kulkarni v Milton Keynes Hospital NHS Foundation Trust and the Secretary of State for Health [2009] EWCA Civ 789. Article 6 therefore did not apply, and no implied contractual term requiring Article 6 compliance could arise.
4. Exclusion and investigation. The Trust was entitled to exclude the claimant where a critical patient-safety incident, serious allegations and a risk of interference with witnesses were present. The investigation’s function was to determine whether there was a case to answer, not to resolve credibility disputes finally. A root cause analysis was not a contractual prerequisite to investigating possible misconduct, and independent professional advice was required only where appropriate.
5. Procedural breach and consequence. The Trust breached its obligation to identify the allegation of interference with witnesses at the outset. The claimant nevertheless knew the substance of that allegation and had repeated opportunities to answer it. The breach caused no prejudice and did not affect the investigation or dismissal. The claim was dismissed, with costs to the defendant, and permission to appeal was limited to the Article 6 issue.

First instance decision. The court granted permission to appeal, limited to the application of Article 6 of the ECHR to NHS disciplinary hearings and the requirement for an independent and impartial tribunal.