Smo v Hywel Dda University Health Board [2019] EWHC 1973 (QB)
This article originally appeared in Issue 3 (November 2019).
The High Court granted an interim injunction to a consultant colorectal surgeon facing disciplinary proceedings as a result of allegations about his capability and conduct.
Background
Suspended since 2016 pending resolution of the disciplinary proceedings, he was informed in 2018 that a fresh investigation was to be commenced into whether there had been a breakdown of his working relationships.
The Claimant argued that commencing the fresh investigation constituted a breach of his contract of employment. He relied upon the incorporation of certain terms of the disciplinary procedure “Upholding Professional Standards in Wales” (“UPSW”) agreed with the BMA in 2015, equivalent to the MHPS procedure in England, guaranteeing certain procedural safeguards for the doctor such as the right in certain circumstances to legal representation and independent panel members at a hearing. The Defendant disputed that UPSW had been so incorporated insofar as the fresh investigation into working relationships was concerned as it did not concern capability, conduct or performance.
Judgment
Considering the authorities at paragraphs 46-51, Mr Roger ter Haar QC, sitting as a Deputy High Court judge, noted that in some cases it would be clear whether allegations of a breakdown of working relationships were in truth concerns related to the doctor’s professional conduct and capability. In other cases, it would not be so clear. In the present case a further issue arose as to whether conducting a separate investigation into working relationships would in itself undermine or appear to reduce the efficacy of an ongoing USPW procedure, thereby constituting an arguable breach of contract.
Applying the well-known test in American Cyanamid [1975] 1 AC 396 and subsequent caselaw, e.g. National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] 1 WLR 1405, the judge held at [69] that there was a serious issue to be tried at trial as to whether the Defendant was in breach of contract for commencing the fresh investigation into working relationships. The fresh investigation relied upon interviews with staff conducted as part of the UPSW procedure, which was far from complete, and there was a substantial overlap between the two processes. Findings could be made as part of the working relationships investigation that could appear to pre-judge the UPSW process.
As to whether damages would be an adequate remedy in the event that the Defendant was found to be in breach of contract at trial, the judge considered it impossible to say damages would be adequate, given the difficulties in judging the value of the UPSW process, which “is intended to protect practitioners in respect of matters at the heart of their professional lives, something which is not lightly to be displaced by an attempt to value damage to professional reputation in money terms” [74].
As to the balance of convenience, the parties had agreed to a speedy trial within months. The Defendant argued that it was continuing to employ locums whilst the Claimant was not working and thus wished to pursue the working relationships investigation pending trial. The judge noted that the UPSW procedure was ongoing, notwithstanding an extant appeal by the Claimant challenging the referral of the matter to a disciplinary panel. On the basis that the UPSW investigation proceeded the Defendant would continue to need to employ locums, so on the Defendant’s own case granting the injunction in this matter would not affect it in monetary terms [81]. On the other hand, proceeding with the working relationships investigation would involve an interview with the Claimant that might put him in a difficult position: “if he does not attend the interview, he loses the opportunity to put his case. If he does attend, he may be said to have acquiesced in the working relationships process”[85]. Given the short delay proposed the balance of convenience lay with the Claimant and the Defendant was restrained from carrying out such an interview pending the trial of the issues in the present proceedings. The judge did however consider that inquiries with other staff could continue [84].
Comment
A notable success by a doctor facing two disciplinary processes and under investigation by his employer for several years. However, as noted by the judge, the injunction granted was very limited in time and scope [77]. The Claimant was obliged to offer a cross-undertaking in damages and it was observed that he had some continuing income from the Defendant and other employment. However, giving such an undertaking will be a difficult decision to take in every case. Seeking interim injunctive relief is a high-risk strategy for doctors locked into such disputes, with success at this stage no guarantee of the Defendant backing down as might be hoped.
