Dr A v HTX

An employer may convene an ill-health panel to decide whether a doctor should remain employed with adjustments, take another role, or be dismissed, even where the governing health procedure favours rehabilitation and does not expressly mention a panel. The mere convening of such a panel is not, without more, a breach of contract.

Specific exclusion procedures may have contractual effect, particularly where exclusion and review periods are carefully prescribed. A breach of those procedures does not necessarily justify an injunction restraining a later panel hearing. The implied term of trust and confidence imposes a stringent objective test and is not breached merely because a case manager reaches a conscientious decision with which the employee disagrees. An injunction remains discretionary and will not ordinarily be granted where it would prevent an independent panel from resolving an employment impasse.

The claimant, a consultant paediatrician employed by an NHS Trust, sought a final injunction or equivalent declaration preventing the Trust from convening an ill-health panel. She alleged breach of contractual procedures and of the implied term of trust and confidence. The Trust maintained that the panel was required to decide whether she could return to work with adjustments, undertake another role, or have her employment terminated.

The claimant had been excluded from work following concerns about her mental health, conduct and patient safety. A jointly instructed psychiatrist considered that a return to work was possible subject to monitoring, treatment and other safeguards. The Trust’s case manager concluded that the proposed adjustments were impracticable and referred the matter to a panel. The central issues were whether that referral breached the contract and whether injunctive relief should be granted.

1. Contractual procedures. The Trust’s policy was incorporated into the claimant’s employment contract, but not every provision was necessarily contractual. The relevant considerations included the language used, the importance and certainty of the provision, its level of detail, its context, and whether contractual enforcement would be workable. The provisions governing exclusion were sufficiently specific and significant to have contractual effect, whereas some higher-level guidance and provisions concerning relations with the Strategic Health Authority were not contractual.
2. Exclusion. The initial exclusion was justified by the serious circumstances. The Trust breached the contractual requirement that exclusion reviews be prospective and comply with the prescribed duration and renewal safeguards. The Trust also implemented some relaxation of the exclusion later than it should have. Those breaches did not, however, establish a breach in convening the ill-health panel.
3. Ill-health panel. The policy and Maintaining High Professional Standards in the Modern NHS favoured rehabilitation and reasonable adjustments, but it did not follow that a panel was impermissible. The claimant accepted that holding the panel was not itself a breach of contract. The case manager was entitled to form and express a provisional view while referring the ultimate decision to an independent panel.
4. Trust and confidence. The implied term prevents conduct, without reasonable and proper cause, likely objectively to destroy or seriously damage the employment relationship. The test is stringent and may be assessed cumulatively. The Trust’s conduct, including its interpretation of the psychiatric evidence and its decision to refer the matter to a panel, did not meet that threshold. The case manager had acted conscientiously and the decision was open to him, even though a different view could have been taken.
5. Relief. An injunction is discretionary. The proposed panel was required to consider all the evidence fairly and independently and to decide between continued employment with adjustments, a different role, or termination. Preventing it from doing so would leave the parties in the existing impasse and would prevent a decision that needed to be made. The claim for an injunction or equivalent declaration was dismissed.