Lim v Royal Wolverhampton Hospitals NHS Trust

Before an NHS Trust proceeds to a capability hearing, it must comply with Part IV of Maintaining High Professional Standards in the Modern NHS. Where local resolution is impracticable, the matter must be referred to the National Clinical Assessment Service for consideration of an assessment. The Trust may proceed only after an NCAS assessment panel advises that no educational or organisational action plan has a realistic prospect of success.

Contractual provisions requiring disciplinary processes to be fair and speedy are applied according to the circumstances. Delay does not automatically establish breach or unfairness. The court must assess whether the process was conducted without undue delay and whether the delay caused relevant unfairness.

Dr Lim, a consultant anaesthetist employed by the Defendant, challenged proposed capability and misconduct proceedings. He alleged that the Trust was contractually required to refer his capability concerns to NCAS and await the advice required by the capability procedure before convening a hearing. He also alleged that the revival and pursuit of misconduct allegations several years after the events breached contractual requirements of fairness and speed.

The court determined whether the relevant provisions of the national framework and the Trust's local procedures formed part of the employment contract, whether the Trust had complied with the NCAS requirements, and whether the delay in pursuing the misconduct allegations amounted to breach of contract.

1. Capability procedure. Part IV of Maintaining High Professional Standards in the Modern NHS required the Trust, where capability concerns could not be resolved locally, to refer the matter to NCAS for consideration of an assessment and assistance with an action plan. The Trust could proceed to a capability hearing only if an NCAS assessment panel advised that the practitioner's performance was so fundamentally flawed that no educational or organisational action plan had a realistic prospect of success.
2. Conflict between Parts I and IV. Part IV prevailed over the apparently different option in Part I because it was introduced later and specifically addressed professional capability. It supplied the framework against which NHS Trust capability procedures had to be formulated.
3. Contractual effect. The statutory directions required NHS bodies to comply with the framework. The Trust had agreed to work within it before formally adopting HR28 and HR27. Once adopted, provisions apt for incorporation formed part of the Claimant's contract. This conclusion was consistent with the approach in Skidmore v Dartford & Gravesham NHS Trust and Hameed v Central Manchester University Hospitals NHS Foundation Trust.
4. The NCAS letter of 18 August 2010 did not constitute advice from an assessment panel that no action plan had a realistic prospect of success. The Trust would therefore have been in breach of contract if it proceeded to a capability hearing before receiving such advice. A prior completed assessment was not itself required; the required step was the assessment panel's advice.
5. Misconduct allegations. Any express or implied obligation to conduct disciplinary proceedings fairly and without undue delay was fact-sensitive. Royal Society for the Prevention of Cruelty to Animals v Crudden did not establish that delay necessarily produced unfairness. The Trust investigated the allegations thoroughly and without undue delay, the Claimant had admitted most of them, he had not been told that they were abandoned, and the allegations were later expressly pursued. There was no breach of contract in pursuing them.
6. The court therefore held that the Defendant would breach contract by failing to comply with HR27 paragraphs 1.22 and 1.23, but was not in breach of any contractual obligation in pursuing the misconduct allegations.