Where disciplinary proceedings were contemplated against an employee who might be subject to alternative contractual and professional complaints procedures, the employer must look to the contract to decide which procedure was to be followed. If the disciplinary procedure followed was a contractual one, then public law considerations of reasonableness would not apply to the proceedings. A doctor who, in the course of examining a patient’s finger, touched her breasts and tummy, could properly face a complaint under his contract as personal misconduct rather than as a professional conduct complaint. The employer has to decide which procedure to follow. But the employer has to take that decision in accordance with the terms of the contract.
Hale LJ said: ‘One might have thought that the answer to the first issue was obvious. The employer who is contemplating disciplinary action against an employee has to decide which procedure should be followed. If the employee thinks that the employer has made the wrong choice, he can try to have it changed in advance or seek damages after the event. The court will have to perform its usual task of construing the contract and applying it to the facts of the case.’
Judges:
Keene LJ, Hale LJ
Citations:
Times 17-Jan-2001, [2000] EWCA Civ 342, [2001] ICR 903, [2000] Lloyd’s Rep Med 331
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Saeed v Royal Wolverhampton Hospitals NHS Trust 2000
. .
Cited by:
Followed – Skidmore v Dartford and Gravesham NHS Trust CA 15-Jan-2002
The appellant was a doctor accused of lying to a patient about the details of an operation. He appealed a decision dismissing him.
Held: Such an allegation was an allegation of professional misconduct, and should have been dealt with as such, . .
Approved – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .
Lists of cited by and citing cases may be incomplete.
Employment, Health Professions
Updated: 31 May 2022; Ref: scu.147375