Idu v East Suffolk and North Essex NHS Foundation Trust

The fact that the accused is a doctor does not of itself make alleged misconduct "professional"; the correct test asks whether, in substance, the conduct arose from or required assessment by reference to medical skills or responsibilities and whether medical expertise would assist the panel.

Where an employer's disciplinary framework mandates an independent medically qualified panel member for professional matters, that requirement is engaged only if the matter materially concerns clinical or professional conduct or capability.

The appellant, a consultant surgeon, was summarily dismissed after a Trust disciplinary process that did not include an independent medically qualified panel member. The Employment Tribunal found the allegations to be personal misconduct rather than professional misconduct or lack of capability.

The appellant appealed to the Employment Appeal Tribunal on a narrow point: whether the Tribunal erred in law by failing to characterise some allegations as professional misconduct or capability matters such that the Trust was contractually obliged to include an independent medical panel member and to involve NCAS.

The EAT considered the application of MHPS and the Trust's ADC Policy and the established authorities on classification of misconduct. The central issue was whether a medically qualified panel member would have had useful professional insight into the matters in dispute.

1. Outcome: The appeal is dismissed. The Employment Tribunal did not err in law in characterising the allegations as personal misconduct rather than professional misconduct or capability issues (disposition: appeal dismissed).
2. Legal test: Professional misconduct for the purposes of MHPS must be assessed by substance. The correct question is whether the conduct arose from factors associated with the exercise of medical skills or responsibilities or whether medical expertise would assist the panel. The mere fact the actor is a doctor is insufficient to make misconduct "professional" ([Skidmore] and [Mattu] applied) (see paras [13.14]; [13.15]).
3. Application to facts: Each proved allegation was examined. The Tribunal was entitled to find that the matters involved deliberate refusal to follow management instructions, rudeness, failure to explain administrative choices and refusal to cooperate. Those matters did not require medical expertise and were therefore personal misconduct rather than professional misconduct or capability issues (see paras [13.14]; [13.15]).
4. Practical criterion: The utility of a medically qualified panel member is a central consideration. If such a member would not provide relevant professional insight on the disputed issue, the MHPS requirement is not engaged.
5. Consequences: Because no professional conduct or capability issue arose, the Trust was not in breach of contract for failing to include an independent medical member, and NCAS referral/assessment was not required. The Employment Tribunal's conclusions were not legally flawed and the appeal fails.
6. Order: Appeal dismissed. No further remittal was required.

• Employment Appeal Tribunal: Appeal dismissed; affirmed that the Employment Tribunal properly characterised the allegations as personal misconduct and did not err in law (this judgment) (8 November 2018).
• Employment Tribunal (Bury St Edmunds): Original hearing dismissed all claims against the Trust; reasons promulgated 14 September 2017.