Disciplinary – Carry on Doctor
In the case of Edwards v Chesterfield Royal Hospital NHS Foundation the Court of Appeal decided that a claim for damages resulting from breach of a contractual disciplinary procedure can succeed.
Mr Edwards worked as a consultant for the NHS Trust. His contract of employment stated that he was entitled to three months’ notice of termination of employment, and also included a contractual disciplinary procedure in matters of professional or personal misconduct.
In 2006 he was summarily dismissed for gross misconduct and personal misconduct, and was thereafter unable to secure permanent employment in the NHS. He bought breach of contract proceedings in High Court, claiming over £4m in damages. His argument was that had the Trust complied with the contractual disciplinary procedure, including appointing a qualified chair and allowing him to be legally represented at the hearing, he would not have been dismissed and would have remained in employment with the Trust until he retired.
The NHS argued that (under the case of Johnson v Unisys) any claim for breach of disciplinary procedure should be made under unfair dismissal at the tribunal.
The Court of Appeal said that the Johnson case means that the courts will not imply a term into a contract that an employer has to act reasonably towards an employee in relation to the actual dismissal itself (i.e. such a claim is for the tribunal alone to deal with under unfair dismissal). However, in this case there was an express clause so the case of Johnson did not apply and the claim for unlimited damages in the courts could proceed.
David at Twenty Twenty Law says: This case is highly significant, especially for organisations with contractual disciplinary and grievance procedures. Organisations must ensure they strictly adhere to the procedure; otherwise they run the risk of uncapped potential damages claim. We advise against making such procedures contractual. It is essential that the contract and the handbook are clearly drafted. The handbook should have one section for contractual provisions and another for non-contractual provisions.
Leon at Twenty Twenty Law says: Most private employers do not have contractual disciplinary and grievance procedures so this case may be of limited use to employees.
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