Hussain v Surrey and Sussex Healthcare NHS Trust

An employer exercising a contractual power to classify disciplinary allegations must act honestly, in good faith and rationally. A classification which no reasonable employer, properly understanding the relevant procedure, could adopt is invalid.

Whether provisions in a disciplinary procedure are contractual depends upon the parties’ objectively evinced intention. Important, certain and workable provisions governing exclusion and the choice between conduct and capability procedures may be incorporated, while detailed investigatory guidance may not be.

Exclusion of a practitioner must be limited to restrictions justified by patient safety, staff protection or the integrity of an investigation. The employer must consider less restrictive work and review exclusion at the stipulated intervals.

The claimant was a consultant paediatrician employed by the defendant NHS trust. Concerns arising from her management of a child led to investigations into her capability, the accuracy of clinical records and her response to correspondence concerning care proceedings.

The Trust excluded her from clinical and non-clinical work and proposed a conduct hearing. She claimed that the exclusion and proposed disciplinary process breached contractual procedures derived from Maintaining High Professional Standards in the Modern NHS. During the trial, the Trust replaced its original March charges with amended charges confined to alleged misconduct. The parties also resolved the dispute concerning article 6 of the European Convention on Human Rights and Fundamental Freedoms.

The principal issues were whether the Trust had contravened the Practitioners Disciplinary Procedure, whether the relevant provisions were contractual, and whether it could proceed with the amended charges.

1. The claim succeeded in part. The Trust had breached the claimant’s contract by imposing and continuing restrictions which were more extensive than justified and by failing to review her exclusion after 10 January 2011. Although some restrictions, particularly upon relevant clinical work, were permissible, the existing exclusion from all professional activity, Trust premises and contact with colleagues was excessive. The appropriate order was reserved for further submissions.

2. The contractual exclusion provisions required the Trust to consider whether the practitioner could work in a limited or alternative capacity. They also required exclusion to be reviewed at intervals not exceeding four weeks. No real consideration had been given to less restrictive arrangements. The Trust had therefore failed to comply with paragraphs 2.9 and 2.18 of the Practitioners Disciplinary Procedure. Paragraphs 2.25 and 2.27 had also not been observed, although those provisions were guidance rather than contractual terms.

3. Where a contract confers a discretionary decision-making power, it must be exercised honestly, in good faith and without arbitrariness, caprice or irrationality. Paragraph 3.6 entrusted classification of allegations as conduct or capability to the Trust. The court could not invalidate a classification merely because it would have classified the allegations differently. It could intervene where no reasonable employer, properly understanding the procedure, could have made the classification.

4. The March charges improperly combined capability matters with misconduct allegations. The decision to present all of them to a conduct hearing was irrational and contrary to paragraph 4.5. Had the Trust pursued that course, it would have breached the employment contract.

5. The earlier decision in principle to determine genuine conduct issues separately was nevertheless valid. The seriousness of the probity allegations, the need for their prompt resolution and their effect upon any capability programme justified a separate conduct hearing. The amended charges alleged misconduct alone and could therefore proceed.

6. An investigated concern need not correspond precisely with the charge ultimately presented. The investigation must examine the matter sufficiently to allow the case manager to decide fairly whether a misconduct case should go before a panel. That standard was met. The detailed investigatory provisions relied upon were, in any event, advisory and were not conditions precedent to a valid hearing.

7. Whether procedural provisions were incorporated into the employment contract depended upon the parties’ objectively evinced intention. Their importance to the contractual relationship, degree of detail, certainty, context, workability and wording were relevant. Paragraphs 2.9, 2.18 and 4.5 were contractual; the detailed investigatory guidance in paragraphs 1.13, 1.15 and 1.17 was not.

This was a first-instance claim commenced on 8 April 2011. The claimant sought to restrain a proposed conduct hearing and alleged breaches of her employment contract. The disciplinary hearing was postponed pending trial. No prior judicial decision is stated in the judgment.