Lu v Nottingham University Hospitals NHS Trust

An employer does not breach an employment contract merely because a return-to-practice programme is detailed, competency-based, supervised by an accredited trainer, or takes substantial time in exceptional circumstances. The implied term of mutual trust and confidence is assessed objectively, in context, and the court should avoid micro-managing the employment relationship.

Where an employer has resolved that an employee presents no greater clinical risk than colleagues, it may not impose additional employment conditions inconsistent with that decision without contractual justification. The responsible clinician must nevertheless exercise independent clinical judgment about the significant current risks that must be disclosed to obtain informed consent.

The claimant, a consultant cardiac surgeon, had ceased surgical practice after an outbreak of prosthetic valve endocarditis involving patients on whom he had operated. The defendant Trust later decided that he could return to the full range of cardiac surgery through a phased re-entry programme, subject to expert recommendations and appropriate safeguards.

The claimant alleged breaches of express contractual obligations and the implied term of mutual trust and confidence. He challenged the proposed re-entry programme, alleged delay and procedural unfairness, objected to the communication strategy, and disputed requirements to disclose his historical association with the outbreak and to obtain additional patient testing. The Trust counterclaimed for declarations concerning the consent arrangements.

1. Re-entry programme. The Trust had not approved or agreed the claimant’s September 2012 proposals. They were proposals requiring further consideration. The Trust was entitled to require a robust programme supervised and assessed by an experienced accredited trainer, with separate qualified supervision for off-pump surgery. A competency-based programme without a fixed timetable was appropriate and did not breach the contract.
2. Delay and procedure. The delays were justified by the exceptional outbreak, the need for investigation and independent expert evidence, the seriousness of the patient-safety decision, and the need to devise a defensible re-entry process. The Trust had acted fairly and had given the claimant substantial opportunities to participate. The task and finish group was compatible with the applicable capability procedure and was not intended to substitute its own decision for the assessment and external validation process.
3. Trust and confidence. The implied term required the employer not, without reasonable cause, to act in a way objectively likely to destroy or seriously damage the employment relationship. The assessment had to consider all the circumstances, including context and the employee’s conduct. The court should not micro-manage complex employment or clinical arrangements. The Trust’s approach to the programme, delay, procedures and communications did not breach that term.
4. Patient consent. A responsible clinician must disclose significant current risks which would affect the judgment of a reasonable patient. The Trust Board had decided that the claimant presented no greater risk than other cardiac surgeons. From the employer’s perspective, it could not impose additional requirements that the claimant or other surgeons disclose the historical outbreak or require additional blood or microbiological tests where the responsible clinician did not consider them clinically necessary. Individual surgeons remained independently responsible for exercising their own clinical judgment. The Trust’s counterclaim for declarations supporting the proposed additional requirements could not be sustained.

First-instance judgment. No prior appellate decision is stated in the judgment.