Smo v Hywel Dda University Health Board [2020] EWHC 727
This article originally appeared in Issue 5 (May 2020).
The Claimant, a consultant colorectal surgeon, was subject to disciplinary proceedings in respect of conduct and his approach to clinical practice pursuant to “Upholding Professional Standards in Wales” (UPSW) closely modelled on the similar provisions in England under ‘Maintaining High Professional Standards’ (“MHPS”). He was suspended pursuant to the UPSW procedure but there then followed delays with that process. During the currency of such delay, the Defendant then sought to launch an additional inquiry by way of a “working relationship investigation” into his relationships with his colleagues to determine whether they had irretrievably broken down (which can be “some other substantial reason” for termination of the employment contract) thus “side-stepping” the contractual disciplinary process to which the Claimant was entitled. The Claimant sought final injunctive relief (an interim injunction already having been granted by Roger Ter Haar sitting as a Deputy High Court Judge – Smo v Hywel Dda University Health Board [2019] EWHC 1973 (QB), covered in Issue 3 by Shaheen Rahman QC) for breach of contract to prevent the Defendant side-stepping the agreed contractual procedure.
Linden J held at [203] that the Defendant could not continue to accuse the Claimant of serious misconduct under UPSW on the basis that it believed that he was at fault whilst, at the same time, sidestepping the procedural safeguards under UPSW by hiving off one of the aspects of the case which continues to be investigated under the Procedure. This is particularly so given that, if the parallel process leads to the dismissal of the practitioner, the practitioner will be denied the opportunity to address the allegations against him and to be vindicated.
Comment
The case is of interest for three principal reasons. First, it is a very helpful clarification of the law on “sidestepping”. The Court reviewed the trilogy of cases: Lauffer v Barking Havering and Redbridge University Hospitals NHS Trust [2009] EWHC 2360 (QB); Kerslake v North West London Hospitals NHS Trust [2012] EWHC 1999 (QB) and Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 where similar “side-stepping” issues had arisen i.e. an employer who, rather than proceed with the contractual disciplinary process under MHPS or its equivalent, seeks to terminate employment on “some other substantial reason” grounds, usually, irretrievable breakdown of relations. Distinguishing Jain (where a similar situation arose) from the present facts, Linden J held that UPWS was directly incorporated into Dr Smo’s contract of employment, and that the relevant contractual clause (clause 9.2) expressly required the Defendant “to handle… any issues relating to conduct, competence and behaviour… in accordance with UPSW”. This express stipulation precluded the Defendant’s attempt at sidestepping. Linden J also observed that any working relationships investigation entailed, both in principle and practice, consideration of the reasons why relationships between the Claimant and his colleagues had broken down and whether, in the light of those reasons, the situation was irretrievable.
It was therefore plainly impermissible to sidestep the agreed procedure which provided specific protections to the Claimant (legal representation etc.) and had been agreed at a national and local level.
The second reason the case is of interest because the judge held that if he was wrong about the effect of the express term 9.2, then the Defendant was in breach of the implied term of mutual trust and confidence to embark on the working relationships investigation in the circumstances in which it did so. Again, distinguishing Jain because in that case, in contrast to the present, MHPS was not directly incorporated into the contract, the judge explained that the premise on which the question of breach of mutual trust and confidence or rationality arose was that although the relationships investigation was not one which the Defendant was required to consider under UPWS, it was very closely related to it. Thus concerns or issues were being investigated under that procedure and the state of working relationships had been a relevant consideration at all stages of the UPWS procedure up to that point.
The third reason the case is of interest, which is dealt with in an appendix to the judgment, is that the Claimant, although seeking to rely on his written witness evidence prepared for the interim injunction application, did not propose to give oral evidence at the final injunction hearing. His stated justification was that he did not want to be drawn into debate about the merits of the underlying allegations against him given that those allegations are currently under consideration in the UPSW disciplinary process. The Defendant objected arguing that if the Claimant maintained his position his evidence should be disregarded and the claim dismissed “by reason the that there cannot be a fair trial and the claim is an abuse”. The judge rejected the Defendant’s application considering it to be disproportionate, but did in the event, require the Claimant to give oral evidence on certain limited paragraphs of his witness statement. In the event the cross examination of him on those issues went nowhere.
Overall, the case very helpful because Linden J (a very experienced employment barrister when at the Bar) distils many of the key principles at play in such cases, and explains how, on particular facts and circumstances, an employer will be in breach of both express and implied terms by seeking to sidestep an agreed contractual procedure in respect of dealing with conduct and performance issues.
