Factual and Procedural Background
This opinion concerns an urgent interim relief application brought by the Applicant, a consultant colorectal and general surgeon employed by the Defendant Trust. The Applicant seeks to restrain a two-day hearing scheduled to commence on 1st October 2015. The hearing involves a panel of independent assessors convened by the Defendant Trust to consider whether the Applicant's employment should be terminated on grounds of serious professional shortcomings and/or an irreparable breakdown in working relationships with colleagues.
The Applicant has been employed by the Defendant Trust since approximately September 2004. In July 2010, concerns were raised by the Trust regarding the Applicant’s complication rates in colorectal surgery and his response to advice, leading to suspension from colorectal surgery pending investigation. Subsequent investigations focused on both the Applicant’s professional capability and his relationships with colleagues. In April 2011, the Applicant was excluded from practice by the Trust due to perceived deficiencies in capability and breakdown of working relationships. Attempts at remediation, including a proposed external placement, were unsuccessful due to the inability to find a suitable supervisor and irreparable interpersonal issues.
The Applicant previously challenged the legality of his suspension in High Court proceedings, which were dismissed by a judgment of Mrs. Justice [Last Name] in February 2015. Following this, the Trust notified the Applicant of a formal capability hearing under the Department of Health’s "Maintaining High Professional Standards in the Modern NHS" ("MHPS") framework. There is dispute whether the MHPS procedures fully apply to the relationship breakdown issue, but the Trust accepts it must act fairly in all respects.
Legal Issues Presented
- Whether convening the capability hearing without a formal investigation into the alleged breakdown of working relationships breaches the Applicant’s contract of employment and/or procedural fairness requirements.
- Whether the Trust’s partial application of the MHPS procedures (applying them to capability but not relationship breakdown issues) is lawful and fair.
- Whether the absence of the case manager at the hearing, who is responsible for presenting the Trust’s case, undermines the fairness of the proceedings.
- Whether reliance on findings from the prior High Court judgment, which is subject to appeal, is unfair or prejudicial to the Applicant.
Arguments of the Parties
Appellant's Arguments
- The Trust has failed to conduct any proper or adequate investigation into the alleged fundamental breakdown of working relationships, relying instead on historic documents and reports not specifically directed at relationship issues.
- The Trust intends to proceed with the capability hearing while excluding the relationship breakdown issue from the MHPS procedure, despite the two issues being interlinked, thereby circumventing important procedural safeguards.
- The case manager responsible for managing the investigation and presenting the Trust’s case will be absent from the hearing, depriving the Applicant of a critical procedural protection.
- The Trust’s reliance on the prior judgment of Mrs. Justice [Last Name] is unfair, as the judgment was not intended to make definitive findings of fact and remains subject to appeal.
- The proposed hearing procedure will be unfair and prejudicial, denying the Applicant fundamental procedural protections guaranteed by the MHPS and his contract of employment.
Respondent's Arguments
- The Trust has complied with the MHPS procedures as far as applicable and will act fairly in relation to relationship breakdown issues even if the MHPS does not strictly apply.
- The assessment panel is independent and capable of fairly considering all evidence, including submissions regarding the prior judgment.
- The case manager will make himself available by phone or other means during the hearing, ensuring the Applicant is not prejudiced by his physical absence.
- The Applicant can raise any procedural or substantive points during the hearing and subsequently appeal any adverse decision, providing adequate procedural protections.
- It is in the public interest to allow internal NHS procedures to run their course without premature judicial intervention, particularly given the importance of timely resolution in employment disputes involving senior professionals.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| MacMillan [2014] EWCA 1031 |
Employer's managerial discretion in employment matters and the scope of internal procedures. |
Confirmed that employer discretion is broad and internal procedures facilitate managerial decisions. |
| Braganza [2015] UK SC 17 |
Implied contractual terms requiring fair exercise of employer discretion; Wednesbury rationality test applied to employment decisions. |
Supported the view that employer discretion is constrained by implied terms but remains broad. |
| Yapp [2014] EWCA Civ 1512 |
Application of fairness and reasonableness standards to employer discretion in disciplinary procedures. |
Reinforced the broad discretion of employers within a range of reasonable options. |
| Kulkarni [2009] EWCA Civ 789 |
Limits on judicial intervention to avoid micro-management of internal employment procedures. |
Illustrated reluctance of courts to interfere with internal panel decisions absent serious irregularities. |
| Chhabra v West London Mental Health Trust [2013] UKSC 80 |
Procedural irregularities do not necessarily render a process unlawful unless material prejudice is shown. |
Supported the view that the panel can rectify procedural issues and ensure fairness. |
| Makhdum [2012] EWHC 4015 |
Court’s reluctance to interfere with agreed internal procedures absent serious irregularities. |
Emphasized respect for contractual intentions and internal dispute resolution mechanisms. |
| Hendy v MOJ [2014] EWHC 2539 |
Similar principles endorsing non-intervention in internal employment processes. |
Supported the approach of allowing internal procedures to conclude before court interference. |
| Sarker [2015] EWHC 165 |
Reinforced the principle of judicial deference to internal disciplinary processes. |
Affirmed the importance of internal resolution and limited court intervention. |
| Dr A v HTX [2012] EWHC 857 (QB) |
Public interest in expert panels deciding substantive capability issues. |
Supported the view that capability decisions should be made by expert panels rather than courts. |
| Chakrabarti [2014] EWHC 2735 |
Requirement for flexibility in applying disciplinary procedures. |
Supported the proposition that procedures should be applied with flexibility to ensure fairness. |
Court's Reasoning and Analysis
The court acknowledged the complexity and urgency of the matter and applied established principles governing interim relief in employment disputes, referencing the Cyanamid test and relevant case law. It recognized the broad managerial discretion vested in employers, constrained by implied contractual terms requiring fairness and trust.
The court found that the Applicant’s arguments regarding the application of the MHPS to relationship breakdowns were serious and arguable but ultimately not determinative at this stage. It emphasized the flexibility of the MHPS and the panel’s duty to act fairly, noting that the panel was better placed to assess evidence and procedural issues than the court.
The court rejected the Applicant’s contention that the absence of the case manager at the hearing would cause unfairness, given the Trust’s commitment to ensure the case manager’s availability by alternative means. It also found no basis to pre-emptively exclude reliance on the prior High Court judgment, as the panel could appropriately weigh its evidential value and the Applicant had the right to appeal.
The court stressed the public interest in allowing internal NHS procedures to proceed without undue judicial interference, particularly to avoid delay and increased costs. It noted that the Applicant could raise procedural or substantive challenges during the hearing or on appeal, and that no systemic unfairness had been demonstrated to justify interim relief.
Finally, the court cautioned the panel to be vigilant in protecting the Applicant’s right to a fair hearing, including clarity on the Trust’s case and appropriate use of adjournments, while avoiding satellite litigation that might distract from the core issues.
Holding and Implications
The court DENIED the Applicant’s application for interim relief to restrain the capability hearing.
This decision allows the internal assessment process to proceed as scheduled, preserving the role of the independent panel in determining the Applicant’s employment status. The ruling underscores the court’s deference to internal NHS procedures and highlights the availability of procedural safeguards, including the right to appeal. No new legal precedent was established; rather, the court applied established principles to balance fairness, managerial discretion, and public interest in timely resolution of employment disputes.