Jonathan Davies

JONATHAN's PRACTICE AREAS

• Dr Kulkarni v. Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789, Court of Appeal; (contract of employment, doctor - discretion to allow legal representation) Jonathan appeared as junior Counsel both at trial and at the successful appeal in this matter before the Court of Appeal in May 2009. The judgment was highly significant for two reasons:it establishes that doctors and dentists employed by the National Health Service are entitled to legal representation at internal disciplinary hearings to determine serious disciplinary charges made against them;

• it strongly suggests (albeit obiter) in relation to all employees of public bodies that internal disciplinary proceedings which may result in dismissal in circumstances where, as a direct consequence of that dismissal the dismissed employee is effectively prevented from ever practising his profession again, must comply with Article 6 of the European Convention of Human Rights.

• Dr Mezey v. S.W.London & St. George's etc Trust [2010] EWCA Civ 293, Court of Appeal - Jonathan was instructed as junior Counsel to John Hendy QC. The Court of Appeal upheld the decision of the High Court to grant an injunction preventing the Trust from convening a disciplinary hearing. The Court of Appeal held that under the national disciplinary and capability procedure that applies to all medical practitioners in the NHS, a capability issue only arose if it could be shown that the employee medical practitioner lacked knowledge, or ability, or had rendered consistently poor performance. Since the findings of the investigatory panel did not constitute capability issues as defined by the contractual disciplinary procedure, the Trust acted in breach of contract in convening a disciplinary meeting and the granting of an injunction was therefore appropriate.

• Mrs Debby Greenland v. GX Networks Limited, Court of Appeal. Jonathan Davies successfully represented the employee in her claim for non-payment of commission both at trial in the High Court [2009] EWHC 3760 (QB) and as sole Counsel on appeal. The dispute centred on the interpretation of a clause in the contract of employment, expressed in such a way as to reserve to the employer a discretion to cap the employee’s entitlement to commission earned under the arrangements for remuneration. In the High Court, Mrs Greenland contended that the words ‘by exception only’ which appeared in the clause meant that the employer had to show exceptional circumstances before exercising its discretion and that none had been shown. In the alternative, she contended that, if the clause did exist solely in the realm of discretion, the decision to cap was a breach of the implied term not to exercise any discretion on the face of the contract irrationally: Clark v Nomura International plc [2000] IRLR 766, QBD. The High Court found that there was discretion but it was exercised irrationally. The Court of Appeal held decision on alternative grounds finding that the employer did have to show exceptional circumstances before it could consider exercising its discretion but that the employer had failed to show that such circumstances existed at the time it applied the capping clause.

• successfully representing an employer in two different sets of proceedings for injunctive relief to protect confidential information after several employees left taking customer lists and other sensitive information.

• Dr Igboaka v. The Royal College of Pathologists, EAT, UKEAT/0038/09, HHJ Clarke. Jonathan successfully represented the Royal College of Pathologists both at tribunal and before the EAT. The subject of the appeal was whether the Royal College, which had provided assistance to Dr Igboaka both in the course internal disciplinary investigations against him by his NHS employer and in the course of a referral of him to the GMC, could be sued under the Race Relations Act 1976 either under Sections 12 and 13 or as an aider or abettor to the alleged acts of the GMC. The EAT agreed with the Employment Tribunal that it had no jurisdiction over such claims.

• Hibiscus Housing Association Limited v. McIntosh, EAT, UKEAT/0534/08, Bean J, Jonathan successfully represented the Claimant both at the employment tribunal and on appeal. The appeal dealt with the correct application of the principles of mitigation and the break in the chain of causation in relation to circumstances where a former employee (who had signed up for a university course to obtain future employment) decides to give up her job search.

• Shestak v. Royal College of Nursing and others, EAT, UKEAT/0270/08 (IDS Brief 873, March 2009) Jonathan successfully represented one of the Respondents (the East of England Health Authority) in this matter both before the employment tribunal and on appeal. The application before the tribunal was a strike out. The case dealt with the correct application and interpretation of various provisions in the Race Relations Act establishing jurisdiction where a body is involved in the provision of training and whether the tribunal was justified in striking out on the basis of undisputed documents and the Claimant's failure to articulate her claims.

• In February 2007, Jonathan appeared as junior Counsel in the Court of Appeal on behalf of two former dockworkers suffering from asbestos related diseases: Rice and Thompson v. Secretary of State for Trade and Industry [2007] EWCA Civ 289 established the existence of a novel duty of care in negligence akin to that owed by an employer to an employee but where there was no employment relationship in the strict sense.