Smo v Hywel DDA University Health Board

Where a contractual disciplinary procedure applies to concerns about conduct, competence, behaviour or performance, an employer cannot avoid it by relabelling closely connected concerns as a breakdown in working relationships. The court must examine objectively what is being investigated and what the process actually does. A procedure may accommodate findings that the employee is not at fault, followed by separate consideration of reintegration or other non-disciplinary issues. Running a parallel investigation into the same conduct and its effect on colleagues may also breach the implied duty of mutual trust and confidence, particularly where it places the employee in an impossible position and threatens to pre-empt the contractual process.

The claimant, a consultant colorectal surgeon employed by the defendant, was subject to disciplinary proceedings under the contractual Upholding Professional Standards in Wales procedure. Those proceedings concerned alleged conduct, behaviour, team-working and clinical-performance issues.

While those proceedings remained ongoing, the defendant commissioned a separate investigation into whether the claimant’s working relationships with colleagues had broken down, whether the breakdown was remediable and whether mediation was appropriate. The claimant claimed breach of contract and breach of the implied duty of mutual trust and confidence, seeking an injunction restraining the separate investigation.

1. Construction of the contract. Clause 9.2 of the claimant’s contract incorporated UPSW and required issues relating to conduct, competence and behaviour to be handled under that procedure. The contractual question was assessed objectively, although the court considered the defendant’s evidence about its intentions.
2. The working relationships investigation substantially overlapped with the UPSW proceedings. It concerned the claimant’s relationships with colleagues in the light of allegations about his conduct, behaviour and team-working. In practice, the investigators examined the reasons for the alleged breakdown, the claimant’s behaviour and the extent to which he was responsible. Those matters were issues relating to conduct, competence and behaviour.
3. The words “relating to” were broad but were not unlimited. The disciplinary character of section 9 and the importance of procedural safeguards supported applying UPSW where an adverse finding about working relationships could damage the claimant’s employment and professional reputation.
4. The defendant could not prejudge the outcome of UPSW by deciding that the concerns could not be dealt with under it. UPSW allowed conclusions that no disciplinary action was required, that the practitioner was not at fault, or that non-disciplinary measures were appropriate. “Fault” should be given a broad meaning. A case in which the employee’s conduct was said to have caused the breakdown and the employee should consequently be dismissed would ordinarily fall within the disciplinary procedure.
5. The authorities concerning Lauffer v Barking, Havering and Redbridge University Hospitals NHS Trust, Kerslake v North West London Hospitals NHS Trust and Jain v Manchester University NHS Foundation Trust turned on their particular contractual terms and facts. They did not establish rules based merely on whether a disciplinary process was ongoing, completed or stayed.
6. Alternatively, commencing and continuing the parallel investigation breached the implied duty of mutual trust and confidence. The defendant had reasonable and proper alternatives, including amending the UPSW terms of reference or prioritising the existing proceedings. The parallel processes placed the claimant on a dilemma: contesting the allegations could support the alleged irretrievable breakdown, while admitting them could support the disciplinary case.
7. An injunction was granted restraining investigation of the claimant’s working-relationship issues other than in the current Part 5 UPSW proceedings. The defendant could review the position after those proceedings. The order did not prevent the NCAS referral or assistance to NCAS.

First-instance decision. Permission to appeal was refused because the case turned on its particular facts and the proposed appeal lacked real prospects of success.