Idu v East Suffolk and North Essex NHS Foundation Trust

Whether misconduct by a doctor is professional for the purposes of MHPS depends on the substance of the allegation. The inquiry is whether it arose through factors associated with the exercise of the doctor’s professional medical skills or responsibilities. Professional conduct is construed broadly and is not confined to clinical practice. However, the fact that the alleged wrong was committed by a doctor while at work does not itself make it professional misconduct.

A relevant consideration is whether medical experience or expertise would provide useful professional insight into determining the allegation. A refusal to obey reasonable management instructions, failure to cooperate, and rudeness may properly be classified as personal conduct. Where no professional-conduct or capability issue arises, MHPS does not require an independent medically qualified panel member or a capability assessment by NCAS.

The claimant, a consultant surgeon, was summarily dismissed following findings of misconduct. The allegations included refusing management instructions, failing to engage over a job plan, refusing strike cover, failing to explain departure from an administrative waiting-list policy, rudeness, and refusing to leave a meeting.

The Employment Tribunal dismissed her claims, including ordinary unfair dismissal and wrongful dismissal. It held that the allegations concerned personal rather than professional conduct, so the contractual MHPS procedure did not require an independent doctor on the disciplinary panel.

On appeal, the claimant contended that some allegations raised professional misconduct or capability and that the Trust had therefore breached its contractual procedure. The central issue was the correct classification of the allegations under MHPS.

1. Appeal dismissed. The Employment Tribunal made no error of law in classifying the allegations as personal misconduct. There was therefore no breach of contract and no basis to interfere with the dismissal of the unfair- and wrongful-dismissal claims.

2. The Tribunal, rather than the employer alone, had to determine as a matter of law whether the conduct was properly characterised as professional misconduct requiring an independent medically qualified panel member under MHPS and the contractual ADC Policy.

3. The correct approach was to examine the substance of the conduct. Professional conduct includes the full range of a medical professional’s responsibilities and is not confined to clinical work. Yet the mere fact that a doctor committed the alleged misconduct while performing professional duties is insufficient. A relevant consideration is whether medical expertise would provide useful insight into deciding the issue.

4. Each allegation was properly personal conduct. The complaints concerned deliberate disobedience of reasonable instructions, a flat refusal to cooperate or explain conduct, and rudeness. The waiting-list allegation concerned refusal without adequate explanation to comply with an administrative procedure, rather than the claimant’s clinical judgment about patient priority. Medical expertise was not needed to determine any allegation.

5. No issue of capability arose. Neither party advanced one, and the allegations did not concern the claimant’s clinical or professional competence. Accordingly, MHPS did not require referral to NCAS for a capability assessment.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s judgment dismissing the ordinary unfair-dismissal and wrongful-dismissal claims was upheld.
• Employment Tribunal: Bury St Edmunds Employment Tribunal, judgment promulgated on 14 September 2017. It dismissed all claims, including ordinary and automatic unfair dismissal and wrongful dismissal.