Idu v The East Suffolk & North Essex NHS Foundation Trust

Whether disciplinary allegations against a doctor involve professional conduct is a question of law for the court, not the employer. The defining connection is with the exercise of medical skills. The fact that conduct occurs in a doctor’s employment or relates to professional responsibilities is insufficient. Clinical conduct is the paradigm, but not the exclusive category. Whether independent medical experience or expertise would assist is a useful guide, not a conclusive test. Examples of capability concerns in the applicable NHS framework are not automatically capability cases. Alleged rudeness, insubordination, refusal to co-operate or refusal to work ordinarily concerns personal conduct where no issue about medical skills arises.

A consultant surgeon was summarily dismissed after disciplinary proceedings concerning alleged refusal to follow management instructions, failure to co-operate with job planning, patient prioritisation, communications and related conduct. Her claims in the Employment Tribunal were dismissed by written reasons sent on 14 September 2017. The Employment Appeal Tribunal dismissed her appeal in a judgment handed down on 8 November 2018. The appeal concerned whether the allegations required the professional-conduct or capability procedures under the Trust’s framework, including an independent doctor and, for capability cases, prior NCAS advice. The central issue before the Court of Appeal was whether the allegations had been wrongly classified as personal conduct and whether they raised capability concerns.

1. Appeal dismissed. The allegations were properly treated as personal-conduct matters and did not raise capability issues requiring the special procedures.
2. Under the consultant’s contract, the Trust’s disciplinary and capability procedures were to be consistent with the Maintaining High Professional Standards in the Modern NHS framework. The classification of an allegation as professional conduct or capability is a question of law for the court, not the employer. The Employment Appeal Tribunal was entitled, and obliged, to reach its own view.
3. The Court followed the approach in Skidmore v Dartford & Gravesham NHS Trust [2003] UKHL 27, [2003] ICR 721. Professional conduct is conduct arising from the exercise of medical skills. Personal conduct is the residual category. The framework’s more discursive wording did not alter that meaning. Clinical conduct is the paradigm, but professional conduct is not necessarily confined to treatment of patients.
4. The broad approach in Skidmore did not mean that everything done by a doctor in the course of employment, or associated with professional responsibilities, was professional conduct. Mattu v University Hospitals Coventry & Warwickshire NHS Trust [2012] EWCA Civ 641, [2013] ICR 270 showed that refusal to comply with a managerial requirement could remain an employment or managerial issue. In borderline cases it is relevant and helpful to ask whether resolving the charge requires the experience or expertise of an independent doctor. That is a purposive guide rather than an exclusive touchstone.
5. The examples of capability concerns in the framework were illustrative. They might fall under capability procedures, but were not automatically capability issues. Rudeness, bullying and intransigence in dealings with management, without an underlying medical condition or issue of knowledge, ability or consistently poor performance, did not amount to capability concerns.
6. The allegations concerned the Appellant’s job title and leadership role, co-operation over her job plan, refusal to provide work or cover, refusal to explain patient-listing decisions, rudeness, insubordination and alleged unmanageability. Their gist was her relationship with management and colleagues, not the exercise of medical skills. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division) — appeal dismissed. Lord Justice Underhill gave the judgment, with Lord Justices Lindblom and Irwin agreeing.
2. Employment Appeal Tribunal — Simler P dismissed the appeal in a judgment handed down on 8 November 2018.
3. Employment Tribunal — the Appellant’s claims were dismissed by written reasons sent to the parties on 14 September 2017.