Along comes another case to add to the long list of claims against hospital trusts concerning alleged flaws in the disciplinary process. Trusts have very detailed contractual disciplinary procedures, complicated by reviews and the introduction of new and often overlapping procedures consequent to Directions issued by the Secretary of State which have led to a plethora of claims of failure to comply with contractual terms, express or implied. These cases have often assisted more generally in the clarification of tricky legal questions (such as the right to legal representation at disciplinary hearings under human rights legislation).
In Lim v Royal Wolverhampton Hospitals NHS Trust the High Court was asked to consider whether Mr Lim (a consultant anaesthetist) should be granted an injunction preventing a capability hearing from proceeding until an assessment panel of the National Clinical Assessment Service (NCAS) had made a determination as to his performance. The court was asked to determine two questions:
- 1. Whether the Trust was in breach of contract by failing to comply with its own procedures by failing to refer the issues (relating to bullying and inappropriate behaviour) to the NCAS
- 2. Whether, by seeking to revive allegations of misconduct some three years earlier, the Trust failed to comply with the terms of its own disciplinary procedure that it should act fairly and speedily.
With regard to the first allegation, Mrs Justice Slade ruled that the procedural rules required a reference to the NCAS for it to consider whether an assessment should be carried out and the advice of the assessment panel that no action plan for improvement would have a realistic chance of success before the case manager may decide whether to proceed to a capability hearing. It followed that if a capability hearing were to proceed without such a referral the Trust would be in breach of contract.
With regard to (2), Slade J ruled that even if the wording in the relevant documentation that there should be speedy and fair processes were to be regarded as contractual, the effect of such provisions should depend on the circumstances. The decision in Royal Society for the Prevention of Cruelty to Animals v Crudden  IRLR 83 could not be relied upon as establishing a rule that delay in disciplinary proceedings necessarily leads to a finding of unfairness in unfair dismissal proceedings. Each case is fact sensitive. So, too, is the application of implied terms to act fairly and without undue delay. On the facts in this case, Mr Lim had been aware of the misconduct allegations and that they had not been dropped. It was simply that other issues had supervened.
Whilst clearly the Trust’s obligation to follow NHS procedures was key to this case, the decision does have wider significance. Where new procedures are introduced it must be made clear that these supersede earlier procedures which should be unequivocally withdrawn to avoid the confusion which may arise where various disciplinary procedures apply. More pertinently in the private sector, it underlines the importance of ensuring that procedures are kept straightforward and non contractual with the right to skip stages. Binding the employer to a contractual policy will tie their hands and lead to the possibility, as in this case, that an employee applies for an injunction preventing an employer proceeding with, say, dismissal or disciplinary proceedings until it has complied with its own contractual processes.
Also noteworthy is the fact that delay in progressing old allegations is not necessarily fatal and is always fact sensitive. In this case the three year old allegations had simply been kept live while other events (the more serious allegation of inappropriate behaviour) had intervened.