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Incorporation of the disciplinary policy

02 November 2011 #Employment

The case of Hussain v Surrey and Sussex Healthcare NHS Trust highlighted what factors the Court should consider when deciding whether a provision should have contractual effect.  It was said the relevant factors included: (a) the importance of the provision to the contractual working relationship; (b) the level of detail prescribed by the provision; (c) the certainty of what the provision required; (d) the context of the provision; (e) whether the provision was workable.

The claimant, Dr Hussain stated that her employer was responsible for a breach of contract in respect of her exclusion from work and disciplinary proceedings being brought against her.

The court held that the nature and extent of Dr Hussain’s exclusion breached the clause in her contract of employment requiring the Trust to give full consideration to whether she could continue in or return to work in a limited capacity or in an alternative, possibly non-clinical role, pending resolution of her case.

Doctor Hussain had challenged the Trust’s decision to proceed with the conduct allegations only prior to any hearing in respect of the capability allegations.  The Court agreed that this was permitted by the employment contract and that a valid decision had been made in respect of this.  The Court stated that the Trust had improperly exercised its discretion when referring the charges as originally drafted to a conduct hearing on the basis that the charges could not properly be regarded as limited to conduct.  However, the Court did not find that referring the charges as later amended to a conduct hearing would breach Dr Hussain`s contract of employment.

The Court held that the disciplinary policy was apt for incorporation and that key provisions relating to the exclusion from practice and how to proceed where issues of both conduct and capability were involved, were incorporated into Dr Hussain`s contract of employment.

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