Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust

In an application to restrain an internal NHS capability hearing, the court should be slow to intervene before the specialist process has run its course. Detailed contractual procedures do not eliminate the employer’s managerial discretion, although that discretion is constrained by implied duties of trust and confidence and fairness. The court should avoid micro-management where the panel can address procedural objections and correct irregularities. Even if a formal framework does not strictly apply to an issue, the decision-maker must act fairly, assess the evidence independently and give the employee a proper opportunity to respond. Interim relief is unlikely where the challenge is pre-emptive, the panel is capable of providing a fair hearing, and an internal appeal is available.

The claimant, a consultant colorectal and general surgeon, sought urgent interim relief to prevent an independent assessor panel convened by the defendant NHS foundation trust from considering termination of his employment. The proposed grounds concerned alleged capability shortcomings and an irreparable breakdown in working relationships.

He argued that the Trust had failed to investigate the relationship issue properly, had not followed Maintaining High Professional Standards in the Modern NHS in all respects, and intended to rely on the absence of the case manager and on findings in an earlier judgment. The central issue was whether the proposed hearing was sufficiently likely to be unfair to justify High Court intervention before the panel had acted.

1. Application dismissed. The claimant had not shown a sufficient basis for restraining the hearing. The court proceeded on the assumption that the MHPS framework might arguably extend to relationship issues, without deciding whether it did or whether the Trust had complied with it.
2. In employment matters, the employer retains a broad managerial discretion to establish relevant facts and decide how they affect future relations. That discretion is constrained by implied duties not to damage trust and confidence without reasonable and proper cause and to act fairly in disciplinary or similar proceedings. The court should not micro-manage an internal process.
3. The panel was a specialist body able to hear procedural and substantive objections, assess the evidence and decide what weight to give the earlier judgment. Findings in that judgment were not binding on the panel. The panel could attach such weight to them as it considered appropriate.
4. A pre-emptive challenge based on possible unfairness was unconvincing without evidence that the procedure to be adopted would be systemically unfair. The case manager’s unavailability could be addressed by telephone, video link or other arrangements, and it was for the panel to manage that issue fairly.
5. Even if the MHPS did not apply strictly to relationship breakdown, the panel remained under a duty to act fairly. It had to receive evidence enabling it to form its own independent and objective view, give the claimant a fair opportunity to respond, and avoid material prejudice. Any irregularity would depend on its materiality.
6. The public interest favoured allowing the independent panel to resolve the dispute promptly, particularly given the importance of determining the status of a senior NHS professional without further delay and cost. The court added that the panel should ensure that the claimant knew the Trust’s case, should adjourn if necessary to secure a fair opportunity to prepare, and should avoid satellite litigation over unparticularised matters.

First-instance interim-relief application. The judgment does not state any subsequent appellate history.