01 November 2011 #Employment
In the case of Dr Lim v Royal Wolverhampton Hospitals NHS Trust, a hospital consultant, Dr Lim, sought an injunction to prevent the Trust from conducting disciplinary hearings into alleged capability and conduct issues. He argued that proceeding straight to a disciplinary hearing, without a prior professional standards review, was in breach of the Trust’s disciplinary and conduct policies which the High Court held were incorporated into his contract of employment.
The Trust was investigating Dr Lim’s capability and conduct in connection with allegations concerning the treatment of a patient, bullying, and the use of abusive language. Dr Lim argued that the Trust was in breach of contract by proposing to hold the hearings before the issues had been heard by the National Clinical Assessment Service (“NCAS”). NCAS would be able to determine whether any of the allegations could be addressed, initially, by way of an educational or organisational action plan, before proceeding to a formal disciplinary hearing.
In connection with the capability allegations, the High Court agreed with Dr Lim. It held that the Trust should have referred the situation to NCAS to determine whether an assessment should be carried out. Only once an assessment was conducted would the Trust be entitled to hold a disciplinary hearing. Therefore, the High Court concluded that the Trust was in breach of contract.
In respect of the proposed conduct hearing however, the High Court held that there was an implied term that disciplinary processes should be conducted thoroughly and without undue delay. The High Court found that the Trust had done this and so was not in breach of contract.
This case highlights the potential pitfalls of confusing capability and conduct proceedings. Employers should also be mindful that professional standards requirements may apply to those processes in different ways.