article
Dotting the I's and crossing the T's
21 August 2008
In recent years there have been a number of challenges in
the courts to employers seeking to utilise disciplinary processes
in relation to medical staff. Iain Patterson, Employment
Partner at law firm Browne Jacobson, looks at the problems
that commonly arise and what steps employers can take to avoid them
from occurring and manage their risk better.
Dealing with performance and misconduct issues
can often be a time consuming and complex process. Managers
handling such processes need to have regard to their organisation’s
own procedures, the statutory dismissal procedures and general
principles of fairness, reasonableness and natural justice. Even
then dismissals often result in challenge in the Employment
Tribunals though unfair dismissal or discrimination claims.
It is perhaps not surprising then that what is
often perceived as the more commercial or private sector approach
of “sack and be damned” has also found its place in the public
sector. Why should an organisation expend time and effort still to
end up in Tribunal when it can (subject to Treasury approval) reach
an agreement with the individual which compromises any claims in
exchange for a severance package? Answers are not required on a
postcard.
In the case of doctors, the consequences of
disciplinary action can be very serious for the individual’s
medical career, gained after many years’ education and training.
Considerable effort has been made to establish procedures that move
the NHS forward and away from the problems created by lengthy
suspensions from work and protracted disciplinary procedures. This
was one of the driving influences in replacing the old procedure
set out in HC (90) 9 with the framework, Maintaining High
Professional Standards in the Modern NHS (“MHPS”). However, the
level of procedural compliance required of the employer is also
raised much higher by continued challenge of disciplinary
procedures through the courts.
Employers are very familiar with the
challenges made by their employees to their disciplinary processes
in the Employment Tribunals through claims of unfair dismissal or
discrimination. Increasingly prevalent in recent years, however,
have been High Court challenges by doctors subject to disciplinary
procedures, alleging a failure by their employer to comply with
contractual procedures.
These cases have highlighted the need for
employers to ensure that their disciplinary procedures are followed
and new or varied procedures properly implemented into their
employees’ contracts of employment.
In Gryf-Lowczowski v.
Hinchingbrooke Healthcare NHS Trust [2006] the court was required to establish the correct
disciplinary procedure applicable to the doctor concerned. The
disciplinary issues arose after the introduction of MHPS but
Mr Gryf-Lowczowski’s contract of
employment referred to the procedure under HC (90) 9. The doctor
said that HC (90) 9 applied to his contract, whilst the Trust
argued that MHPS was the relevant procedure. It had implemented
MHPS by consultation with the union, approval by the Board and
publicising it within the Trust. The High Court adopted the usual
principles in relation to the variation of collectively agreed
procedures and said that the Trust had not gone far enough. In
order to incorporate the new procedure into the doctor’s contract
it needed to have written to him expressly varying his
contract.
The following year in Mezey v. South West
London and St George's Mental Health NHS Trust the doctor
concerned sought an interim injunction to prevent her employer from
implementing a blanket suspension from her duties, pending the
outcome of High Court breach of contract proceedings against the
Trust. Dr Mezey relied on the requirements for the exclusion of
doctors set out in the Secretary of State’s direction, first
introduced in 2003 and now included within the MHPS framework. She
alleged that the Trust had not complied with that procedure. The
Trust said that her contract was not subject to that procedure and
that in any event suspension on full pay was a neutral act and
could not be the subject of an interim injunction. The High
Court, and subsequently the Court of Appeal disagreed. The High
Court said that it was arguable that, although the procedure for
the exclusion of doctors was not expressly part of Dr Mezey’s
contract, the requirement to follow the steps of the procedure for
exclusions set out in MHPS could be implied into her contract.
In recent months, however, there have been
indications that the tide is not all flowing the way of the
employees. In Nageh v Southend UHFT the Trust successfully
defended an injunction application seeking to require it to follow
HC (90) 9. The Trust said that it would have been ultra vires (ie
beyond its powers) to contract with the doctor on the basis of a
procedure that had been withdrawn by the Secretary of State.
Since then in other cases an effort to require
a Trust to allow legal representation during the internal process
failed. Also unsuccessful was an argument that a Trust could not
proceed with its internal procedures whilst a criminal
investigation was pending.
These cases all demonstrate the difficulties
associated with disciplinary procedures, particularly those
involving doctors. Employers need to be scrupulous in ensuring that
changes to procedures are properly incorporated into doctors’
contracts. Once properly incorporated, these procedures need to be
accurately followed in order to avoid expensive legal
challenges.
Employers need to ensure that:
- Procedures are properly reviewed and any changes or variations,
including the implementation of MHPS, are expressly incorporated
into doctors’ contracts of employment;
- Existing contracts are reviewed and, where possible, express
provisions inserted allowing variations to collective disciplinary
procedures to be automatically incorporated into individual
contracts;
- Procedures are followed carefully and legal advice taken before
any departure from these procedures; and
Exclusion is undertaken only as a last resort after all
alternatives to total exclusion have been explored.
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