Case - A v. HTX

LTL 11/4/2012, Queen's Bench Division (Liverpool) - Giles Powell, Nicola Newbegin
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Although an NHS trust's handling of the case of a doctor suffering from bipolar disorder had breached some provisions of its policy on handling concerns about the conduct, performance and health of medical staff, there were difficulties in linking those breaches to the injunction sought by the doctor, which would restrain the trust from referring the case to an ill health panel. Without such a link, such breaches did not necessarily connect to the relief claimed.
 
The claimant doctor (X) claimed an injunction restraining the defendant NHS trust from referring her case to a panel set up to consider issues arising from ill health.

X suffered from bipolar disorder. After some time working for the trust, X became unwell and concerns were raised about her behaviour. The trust excluded her from work and investigated her health. Following the investigation, the trust considered that X could not return to work, nor could adjustments be made to allow her to return, and decided to hold a hearing under its ill health procedure. X resisted that. Her exclusion was periodically reviewed and maintained for some three years.

X argued that referring her case to an ill health panel would breach her contract of employment, in particular because the provisions of the trust's policy on handling concerns about the conduct, performance and health of medical staff had not been applied and because the trust's handling of her case amounted to a breach of the implied term of trust and confidence.

HELD: (1) Although the policy showed that ill health matters should if possible be dealt with by mutual agreement, it did not follow that a panel could not be an appropriate procedure in particular cases. X had conceded that the mere holding of an ill health panel was not a breach of contract (see para.169 of judgment). (2) The policy was incorporated into X's contract of employment. It was therefore a term of her contract that its procedures would be followed unless withdrawn by agreement, Deadman v Bristol City Council [2007] EWCA Civ 822, [2007] I.R.L.R. 888 followed. That did not mean that every part of the policy was to be treated as a contract term, Alexander v Standard Telephones & Cables Ltd (No.2) [1991] I.R.L.R. 286 applied. The paragraphs of the policy regarding health issues were either at too high a level to be contractual or had broadly been followed. However, the provisions as to exclusion set out specific procedures of a kind falling within the criteria for contractual status. The exclusion of a doctor from her place of work was such a significant step that it was reasonable to conclude that the parties must have intended that, as a matter of contract, the substance of the procedure would be followed. The trust had complied with most of the exclusion provisions so far as they were to be regarded as contractual terms, although there had been some breaches. However, there were difficulties in linking breaches of the terms introduced by the exclusion procedure to the injunction sought restraining the holding of a panel. Without such a link, such breaches did not necessarily connect to the relief claimed (paras 171-184). (3) X's allegation that the trust had deliberately failed to take reasonable steps to return her to work was rejected. Although criticism could be made of the trust's conduct, the sincerity of the doctors charged with a series of difficult decisions was not in doubt. The decision to refer the matter to the panel could not in any way be characterised as a breach of the implied duty of trust and confidence (paras 188-192). (4) As there had been no breach of contract, there were no grounds for the grant of an injunction, or a declaration to the same effect. Further, in principle, there were a number of reasons why an injunction would not have been granted even if X's analysis had been accepted. The object of the instant proceedings was to prevent the trust from convening a panel to consider the issues arising from X's ill health. The options available to the panel would be for X to remain in post with adjustments, for X to be put in a different role, or for her employment to be terminated. The panel would take an independent look and decide which option was to prevail. Further, if the injunction was granted the trust would have to consider the situation again and see what had gone wrong. There was value in considering the matter again, and the panel would do that. However, the grant of the injunction would leave the parties where they were, leaving them to continue their so far fruitless efforts to resolve the impasse by agreement, while preventing the trust from convening a panel at which a decision could finally be taken (paras 193-203).

Judgment for defendant.
 
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