Smo v Hywel DDA University Health Board

The claimant is a consultant colorectal surgeon who has been employed by the defendant since 4 January 2016. Since 2 June 2016, he has been subject to disciplinary proceedings pursuant to a procedure entitled “Upholding Professional Standards in Wales” (“UPSW/the Procedure”) which applies to all NHS doctors and dentists employed in Wales. In those proceedings the claimant faces complaints about his conduct and aspects of his approach to clinical practice, the majority of which relate to his alleged interactions with colleagues.

The claimant was excluded (suspended) pursuant to USPW on 24 October 2016 and he has not been permitted to return to work for the defendant since then.

Although the USPW proceedings were, and indeed are, still ongoing, on 31 October 2018 Dr Philip Kloer, the Medical Director and Director of Clinical Strategy of the defendant, wrote to the claimant informing him that Dr Kloer intended to launch an additional investigation into the claimant’s relationships with his colleagues with a view to determining whether they had irretrievably broken down and, if so, what should be done. These proceedings have been coined “the working relationships investigation” and I will use that shorthand in this judgment.

Dr Kloer informed the claimant that Dr Roger Diggle, then the Associate Medical Director of the defendant, had been appointed to undertake the investigation and that Dr Diggle would be in touch with him in due course to seek his views and take a

More than six months later, on 17 May 2019, Dr Diggle wrote to the claimant for the first time, setting out what he described as “allegations” which he had been appointed to investigate and inviting the claimant to attend an interview on 25 June 2019. The claimant responded by letter dated 21 May 2019, expressing concerns about the delay since Dr Kloer’s 31 October 2018 letter, disputing the right of the defendant to initiate a parallel process and accusing it of attempting to circumvent UPSW and the procedural safeguards which the Procedure provides. He advocated postponing Dr Diggle’s investigation.

The defendant was not willing to do so. These proceedings were therefore issued on 24 June 2019 in which the claimant alleges breach of contract and seeks a mandatory injunction to restrain the defendant from proceeding with the working relationships investigation (“the Claim”). He also made an application for interim relief.

On 25 July 2019 Mr Roger Ter Haar QC, sitting as a Deputy High Court Judge, made an order that there be a speedy trial which was to take place on the first open date after 4 November 2019 although, in the event, the matter did not come before me until the week of 3 February 2020. He also ordered that, in the interim, the defendant was prohibited from requiring the claimant to be interviewed by Dr Diggle in respect of

At the outset of the trial I canvassed with the parties my provisional view that there were three broad issues which I had to determine, and they agreed. These issues are:

I also confirmed with Mr Sutton QC that he had not pleaded, and was not alleging, bad faith on the part of the defendant. Nor, it became clear during the trial, was he challenging the evidence of the defendant’s witnesses as to their subjective beliefs about the scope of UPSW or their intentions in commencing the working relationships investigations or their reasons for doing so. This is a point to which I will return.

At the conclusion of the evidence I also pointed out that Mr Sutton’s pleaded case and Sections 4 and 5 of his skeleton argument dated 29 January 2020 were not in line with what I understood to be his real case i.e. that there was a breach of clause 9.2 of the claimant’s “Principal Statement of Main Terms and Particulars of Employment” dated 22 December 2015 (“the Contract”) or, alternatively, even if clause 9.2 permitted the working relationships investigation, it was in breach of the duty of mutual trust and confidence term for it to be commenced or continued in all the circumstances. Mr Sutton therefore sought permission to amend the Particulars of Claim in the terms of a draft which was provided to me. His application was not opposed and I granted permission.

Finally in relation to the issues, it will be noted that although I am required to consider the nature of what is said about and against the claimant I am not asked to consider or determine the merits of the allegations against him and I do not do so. Similarly, I will consider what is said about the claimant’s working relationships and about whether it is feasible for him to return to work, but I do not make any findings as to these issues. These all matters which will need to be considered by others in due course.

On 23 December 2019, the claimant applied for a stay of these proceedings. His application was considered by Mr Ter Haar QC on 22 January 2020 and rejected. Mr Ter Haar’s reasons for doing so are set out in the transcript of his ex tempore judgement and I am grateful to him for taking steps to ensure that they have been made available to me.

Shortly before the trial commenced I received a supplemental skeleton argument from Mr Powell and Ms Newbegin, on behalf of the defendant, in which they complained about the fact that the claimant did not propose to give oral evidence but intended to rely on the witness statement, dated 24 June 2019, which he had prepared for the purposes of his application for interim relief. They indicated that, in the event that the claimant maintained this approach, Mr Powell would submit that I should disregard the claimant’s written evidence and dismiss the Claim “by reason that there cannot be a fair trial and the claim is an abuse” (paragraph 13 of the supplemental skeleton argument dated 3 February 2020).

At the beginning of the trial Mr Powell indicated that he would make this submission after the trial had been opened on both sides. He duly did so and I rejected it for reasons which are set out in more detail in Annex 1 to this judgment. In short, however, I considered that the suggestion that I should dismiss the Claim was wholly misconceived. I did, however, decide that there were five paragraphs of the claimant’s witness statement (paragraphs 16-19 and 25) in respect of which he should make himself available for cross-examination if he wished them to be admitted in evidence. The claimant therefore gave oral evidence for this limited purpose and answered questions from Mr Powell and the court. Paragraph 24 of the claimant’s witness statement, in which he expressed his view that the defendant was “seeking to sidestep” UPSW, was also withdrawn by the claimant and was not admitted in evidence.

Mr Sutton also indicated, in his skeleton argument on behalf of the claimant, that he proposed to object to the admission of the witness statement and report of Mrs Clacey-Roberts into evidence on the grounds that this material was irrelevant. Very sensibly, however, in the event this objection was not maintained albeit after a provisional indication from me.

The bulk of the hearing was taken up with “openings” from both sides and then closing submissions, in the course of which I was helpfully taken to a number of documents and authorities. Apart from brief oral evidence from the claimant, only Dr Kloer gave oral evidence. The statements of the other witnesses on behalf of the defendant were admitted in evidence but they did not give oral evidence, Mr Sutton having indicated that he did not wish to cross-examine them.

The defendant’s witness statements comprised:

There was also a five volume bundle of documentary material, a core bundle and a two-volume bundle of authorities. I also received further materials on the question of relief from both parties after the hearing had concluded.

The material express terms of the claimant’s contract of employment are set out in the Contract. I was told by Mr Sutton that this document is in standard form and that greater details of the claimant’s terms and conditions are set out in the Medical and Dental Staff (Wales) Handbook but that this document sheds no light on the issues which I have to decide.

Section 4 of the Contract incorporated nationally agreed terms and conditions:

“MAIN TERMS AND CONDITIONS OF SERVICE

4.1

The terms and conditions of service including pay, which apply to the post are those which apply to the medical and dental staff employed in Wales as amended from time to time.

4.2

No employer shall form an agreement that is less favourable than those specified within the terms and conditions of service which apply to medical and dental staff employed in Wales as amended from time to time”.

Central to the present case is Section 9 of the Contract which provided as follows:

“DISCIPLINARY PROCEDURES

9.1

Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures.

9.2

Otherwise these will be handled in accordance with employers’ existing Medical and Dental Disciplinary procedures, and where these do not exist, this will be in accordance with WHC(90) 22, WHC (82) 17, and DGM (95) 44, pending the outcome of negotiations on an All Wales Policy with the Joint Welsh Consultant Contract Committee (JWCCC) or any successor body.” (emphasis added)

It is common ground that the provisions referred to in clause 9.2 have been superseded but that the effect of clause 9.2 is expressly to incorporate UPSW. UPSW is a relatively new disciplinary procedure which was agreed between NHS staff side representatives, including the BMA, NHS Employers in Wales, and the Welsh Government following very lengthy negotiations. Its equivalent in relation to the NHS in England is “Maintaining High Professional Standards in the Modern NHS” (“MHPS”), which was required to be implemented by employers by 1 June 2005 and which is considered in some of the decided cases which I refer to below.

Although the version of UPSW which I have been shown is dated October 2015, it took effect from 1 September 2015 and it was formally adopted by the Local Negotiating Committee of the defendant on 7 October 2015. As noted above, the Procedure applies to all NHS doctors and dentists employed in Wales. It replaced all previous disciplinary procedures which were applicable to this group, as well as abolishing the right of appeal to the Secretary of State which some practitioners enjoyed under paragraph 190 of their terms and conditions of service.

Mr Powell drew my attention to the Welsh Government circular, dated 26 August 2015, which notified employers of the introduction of UPSW, and he emphasised that the circular repeatedly referred to UPSW as a disciplinary procedure. He also pointed out that, in addition to clause 9.2 of the Contract, paragraph 189 of the Medical and Dental Staff (Wales) Handbook and Chapter 6 of the Amendment to the National Consultant Contract in Wales Document were amended, with effect from 1 September 2015, so that they provided as follows:

“Upholding Professional Standards sets out the approach for addressingconcerns about capability, performance and conduct for all doctors and dentists. It replaces all existing procedures in operation within the Local Health Boards and NHS Trusts in NHS Wales all successor bodies.…” (emphasis added)

This, he submitted, was the true route through which UPSW was incorporated given that clause 4.1 of the Contract incorporated nationally agreed terms as amended from time to time. I deal with this submission below.

A brief consideration of the contents of UPSW is necessary to assist in following the chronological narrative set out below and because it may shed light on the issues of contractual interpretation and breach of contract which I have to determine.

As far as the application of the Procedure is concerned, the Preface to UPSW explains its purpose as follows:

“This procedure sets out the approach for addressing concerns about capability,performance and conduct for all doctors and dentists (referred to below as “practitioners” in the rest of the document) employed by Local Health Boards or other NHS organisations in Wales” (emphasis added).

The highlighted phrase is repeated in the “Principles” section of the document, albeit with the three types of concern expressed in a different order: “conduct, capability and performance”. This section also makes the point that “the management of conduct, capability and performance is a continuous process” and that potential “concerns about” these matters may come to light in a wide variety of ways including:

“Concerns raised by other NHS professionals; healthcare managers; students and non-clinical staff;”....

The “Principles” section of the Procedure also encourages employers to make use of available advice:

“Employers should seek to use available sources of specialist and independent advice in responding to the areas of concern covered by this procedure. In particular, where the organisation considers it appropriate, the National Clinical Assessment Service (“NCAS”) provides advice on the appropriate response to performance concerns and expert guidance on remedial action.”

The role and availability of NCAS at each stage of the Procedure is further highlighted: see, for example, paragraphs 1.6, 1.12, 1.23, 2.12, 3.6 and 5.18.

As to the relevant stages of the Procedure for present purposes, in summary they are as follows:

Apart from the safeguards summarised above, including the right to external scrutiny in relation to serious disciplinary allegations, an important feature of the Procedure is that the practitioner has a right to representation at all material stages. Paragraph 1.4 sets out an expectation that the practitioner will “ordinarily be represented by a workforce colleague or representative who may be from (or retained by) a trade union or defence organisation” but it goes on to provide that “If the matter proceeds to a hearing, and in particular under the Extended Procedure, the practitioner, may be represented at any such hearing by a legally qualified person who is retained by a recognised trade union or defence organisation”. This right is reiterated at paragraph 5.6a of the Extended Procedure.

In May 2016, not long after the commencement of his employment, concerns were expressed about the claimant by his colleagues based on various alleged incidents and dealings with him. The issues, at that stage, were set out in a letter dated 10 May 2016 which recorded discussions which had taken place at a meeting on the previous day between the claimant, Mr Mark Henwood and Ms Caroline Lewis (a Service Delivery Manager who worked on job planning and related issues).

Very briefly, there were issues in relation to agreeing the claimant’s job plan, “Team working”, management of outpatient clinics and clinical care. The letter included concerns about the claimant’s relationships with key colleagues and how they impacted on these issues. By way of example, the key colleagues included Mr Deans and Miss Singh who were two other consultants in the colorectal team. The claimant was said to have been “very forthright” about his unwillingness to work as part of a team with Mr Deans and Miss Singh. He was told that that “team working [is] an essential part of practice in the National Health Service and [it was] felt that he needed to develop a good team working relationship with [his] colleagues”. Essentially the same point was made about his relationship with one of the defendant’s Cardiology Consultants. It was also emphasised that “poor working relationships do not generate high quality care for our patients”.

Subsequently, further issues arose in relation to the claimant:

On 2 June 2016, Dr Kloer, wrote to the claimant informing him that he had asked Dr Edmunds to act as Case Manager under UPSW. Dr Edmunds was to carry out an initial assessment of the concerns which had arisen and these concerns were summarised in Dr Kloer’s letter. Dr Kloer also summarised the process which Dr Edmunds would follow under the UPSW and enclosed a copy of the Procedure itself.

At a meeting on 26 September 2016, the claimant was notified by Dr Kloer of further complaints which were said to have come to his attention in relation to the claimant’s “behaviour” and also in relation to his “clinical decision-making and practice” since Dr Kloer had written in June 2016. The complaints were summarised in a subsequent letter from Dr Kloer, dated 29 September 2016, and the claimant was told that Dr Kloer was minded to ask Dr Edmunds to consider these issues as part of her initial assessment. In light of the fact that the majority of the patient-related concerns appeared to relate to periods when the claimant was on-call the claimant was required, with immediate effect, to cease to undertake on-call duties. Dr Kloer’s letter stated that, at the meeting on 26 September, the claimant had said that he did not have faith in the defendant to look into the concerns fairly and that he felt humiliated and was minded to resign. The decision to ask Dr Edmunds to look into the further concerns was confirmed by letter dated 30 September 2016.

There was then a further incident on 13 October 2016 when the claimant was said to have discharged a patient without examination or investigation. It was said that, on examination, the patient had been found to have a large low rectal tumour.

Dr Edmunds’ initial assessment was set out in a report dated 21 October 2016. She had apparently interviewed in the order of 16 witnesses who were involved in the incidents which gave rise to the concerns as well as considering relevant documentary evidence. Her report did not consider the additional issues which had been raised at the end of September, and in October, because Dr Edmunds concluded that, in any event, there should be a formal investigation under UPSW and that all of the issues could be considered in the course of that investigation. She summarised the position as follows:

“During [her] investigation more and more concerns were raised by various people. Some of them were clinical and involved issues regarding patient care, others have been about his attendance, his lack of team working and it is clear that there is significant disruption to the working of the department. Many of hiscolleagues feel that they cannot work with him any longer.”. (emphasis added)

At a meeting on 21 October 2016 the claimant was excluded from practice i.e.

The “UPSW Restriction of Practice and Exclusion from Work Checklist” which was completed by Dr Edmunds, apparently on 27 October 2016, contains the following passages:

Pursuant to Dr Edmunds’ assessment that the allegations against the claimant should be the subject of a formal investigation under UPSW, Dr Robertson-Steel, a Hospital Director at Withybush General Hospital, was appointed as the Case Investigator under the Procedure. Dr Robertson-Steel’s terms of reference were issued on 21 November 2016 (they were updated subsequently but nothing turns on this.). He was required to investigate two broad allegations namely that:

“1 [The claimant’s] standard of behaviour and attitude have been unacceptable and that he has failed to display the required standards of behaviour and attitude expected within his role and responsibilities. (“Allegation 1”)

2 [The claimant] has allegedly failed to display the required standards of performance in respect of clinical decision-making and practice as expected within his role and responsibilities.” (“Allegation 2”)

The terms of reference included particulars of each broad allegation. Allegation 1, which was essentially an allegation of misconduct, was based on 12 specified examples. The first two examples were the issues raised in Mr Henwood’s letter of 10 May 2016 and the claimant’s actions in copying his response to 18 colleagues. The

There was also a list of 13 examples of concerns raised in relation to Allegation 2, the penultimate one of which was: “One of the secretaries has indicated that [the claimant] is not working as part of the team and is refusing to write letters following MDTs”.

Dr Robertson-Steel’s investigation took the best part of a year. As part of that investigation he carried out 29 interviews of 23 members of staff, including those who were involved in the various incidents which were said to have given rise to the concerns, with a view to making findings on each of the examples going to the two broad allegations which he had been asked to investigate. This meant that all bar two of the colleagues interviewed by Dr Edmunds were re-interviewed in relation to essentially the same matters by Dr Robertson-Steel. Dr Robertson-Steel also interviewed additional witnesses in relation to the issues which had not been considered by Dr Edmunds and he reviewed relevant documentary evidence.

Dr Robertson-Steel produced a lengthy and detailed report which was sent to Dr Edmunds on 18 September 2017, and then to the claimant and his representatives on 9 October 2017 with the invitation to comment which was required by the Procedure. Comments were duly submitted on the Claimant’s behalf on 29 November 2017.

It is noteworthy that, under the heading “Allegations” Dr Robertson-Steel set out Allegations 1 and 2 and then summarised his task as follows:

In essence, therefore, there were two areas for the Investigator to consider:

In summary, Dr Robertson-Steel’s views, as set out in the “Recommendations” section of his report were that:

In Sections 8 and 9 of his report Dr Robertson-Steel made various findings in relation to Allegation 1 which were critical of the claimant’s conduct, attitude and behaviour which, Dr Robertson-Steel considered, repeatedly showed poor teamworking and had caused a breakdown in working relationships between the claimant and other staff. I highlight some of these findings below when I consider the report of Mrs ClaceyRoberts but, by way of example:

“[the claimant] has repeatedly failed to demonstrate appropriate team working behaviour, has not shared responsibilities or workload in the Department and has been rude and aggressive when asked to do so”

At the end of his conclusions on Allegation 1, Dr Robertson-Steel said:

“9.19

The Investigator notes that all of the Consultants and Team members interviewed were of the view that there was a functioning and effective system of Colorectal and Surgical care in place before the arrival of [the claimant]. Unanimously, members of the Team were of the view that [the claimant’s] behaviours, as demonstrated throughout this report, destabilised a functional working Team.”

Also in the Recommendations section of his report Dr Robertson-Steel added the following under the heading “Other observations”:

“13.13

Following the review by NCAS and the outcome of the assessment, a plan of remediation should be considered. It is likely with good engagement from [the claimant] that he will be able to return to a role as Consultant General Surgeon with an interest in colorectal surgery at some point in the future in an appropriate environment with good monitoring and support.

13.14

The Investigator notes, however, that there has been a breakdown in the working relationships with the Surgical Team at Glangwili General Hospital.

13.15

It is the opinion of the Investigator that it would not be possible to reintroduce [the claimant] as a functioning member of the Surgical Team at Glangwili General Hospital or elsewhere in Hywel Dda University Health Board.

13.16

It would be in the best interest of [the claimant] and the University Health Board to encourage [the claimant], following assessment and appropriate retraining, to seek employment elsewhere.

13.17

This would be in the interests of the National Health Service, [the claimant], the patients for which the University Health Board is responsible and working relationships within Hywel Dda University Health Board.”

Dr Robertson-Steel therefore clearly concluded, as a result of his investigation of the evidence, that it was possible that claimant could return to work elsewhere but that it would not be possible for him to return to work with the defendant given the breakdown in working relationships. Although Dr Kloer said, in evidence, that these and others of Dr Robertson-Steel’s findings and observations went beyond his terms of reference, it does not appear that that was the view of Dr Robertson-Steel. He clearly and understandably saw himself as being tasked with investigating the truth of the allegations against the claimant, the seriousness or otherwise of the claimant’s behaviour and attitude, and the impact which they had on working relationships and team working. His view is unsurprising given that his report was to inform decisions about whether there should be disciplinary action against the claimant and, if so, whether such action should or should not be with a view to the termination of the claimant’s employment by the defendant.

It was 5 months later that Dr Edmunds then produced a “Decision Making Framework” as required by UPSW. This document was dated 20 April 2018. Essentially, Dr Edmunds accepted Dr Robertson-Steel’s recommendations. She concluded, pursuant to paragraph 1.23 of UPSW, that the allegations relating to the claimant’s standard of behaviour and attitude should be considered further under the Extended Procedure set out in Section 5 of UPSW. She concluded that the issues relating to the claimant’s capability and performance under Allegation 2 should be addressed with assistance from NCAS.

The reasoning which led to Dr Edmunds’ conclusion in relation to Allegation 1 is set out at internal pages 14 to 16 of the Decision Making Framework document. She expressed disappointment with the claimant’s attitude. She noted that the claimant had

“had significant negative interactions” with a list of nine key colleagues and that a significant proportion of those who had been adversely affected were female members of staff. She specifically noted the point made at paragraph 9.19 of Dr Robinson Steel’s report (cited at paragraph [50] above). She said that proceedings under Section 5 of UPSW were appropriate, amongst other reasons, because:

“This is not a case of an isolated incident of behavioural and attitude concerns relating to interactions with one or two individuals but a number of incidents involving a wide range of professionals in a multi-disciplinary team;…

A breakdown in relationships to this extent with such a range of individuals involved in the delivery of care has a real risk of impacting on the quality and safety of the care being delivered;…”

Her concluding paragraph in this section of her Decision Making Framework was as follows:

“It is for the above reasons that I am unable to consider any of the other options available to me including the use of the Standard Procedure as opposed to the Extended Procedure. There is evidence which suggests that working relationshipshave broken down with a number of individuals involved in a multi-disciplinaryteam working environment. Having taken everything into consideration I have concluded this to be a serious as opposed to a minor issue.” (emphasis added)

It is also worth noting that the issues of working relationships and team working were relevant to Dr Edmunds’ conclusion in relation to Allegation 2. Internal page 28 of her document included the following passage:

“The Case Investigator concluded that there were clear issues about [the claimant’s] ability to function in a crisis and to cooperate with others in the Colorectal and General Surgical Teams. The Case Investigator concluded thatthere were significant issues with team working and [the claimant’s] relationshipwith his colleagues which, on occasion, resulted in confusion over who was responsible for management, how care was handed over and how care was delivered.” (emphasis added)

On 20 April 2018, Dr Edmunds also wrote to Dr Kloer setting out her concerns about working relationships between the claimant and his colleagues. Her letter included the following passage:

“Having thoroughly reviewed the content of the Case Investigator’s report I am very concerned about the extent to which working relationships with a range of professionals appears to have broken down. I have arrived at this conclusion having read the witness statements included in the Case Investigator’s report along with the Investigation report itself. This does not appear to be a case of a breakdown in relationships between [the claimant] and one or even two members of a team, but a very large cohort of individuals who work in a multi-disciplinary environment. In this connection, I do not believe it would be appropriate for meto consider this at this stage, in my role as Case Manager, based on the Terms ofReference for this investigation. I have advised [the claimant] that I will be writing to you to notify you of these concerns which have materialised as a result of the evidence contained in the Case Investigator’s report.” (emphasis added)

It is not clear why Dr Edmunds took the view that she should not or could not look into this issue given that the impact of the claimant’s alleged behaviour on working relationships was inevitably part of the assessment of the seriousness of his behaviour, given that she had commented on this very issue in her earlier assessments and given how Dr Robertson-Steel had interpreted his brief. Similarly, Dr Kloer asserts at paragraph 31 of his first witness statement that the terms of reference for Dr Robertson-Steel’s investigation did not provide for an investigation of working relationships, of any breakdown in those relationships or of any resolution of such a breakdown. As I have noted, his position in oral evidence was that Dr Robertson-Steel had in some respects gone beyond his terms of reference.

Mr Powell accepted that insofar as a Case Manager or a Case Investigator considers that their terms of reference need to be amended to permit a consideration of additional or wider matters which emerge in the course of the proceedings this can, in principle, be done. Insofar as there was a problem, then, it is not clear why Dr Edmunds did not suggest that this be done. Nor do Dr Edmunds’ witness statement or her reports and letters explain this, other than to say that she took advice from human resources and decided that a separate investigation would be necessary. Nor did Dr Kloer explain why the terms of reference could not be amended other than to return to his assertion that the issues under investigation in the working relationships investigation were not susceptible to investigation under UPSW.

In fact, Dr Edmunds wrote to the claimant on 23 April 2018 enclosing the Decision Making Framework document. Her letter “cut and pasted” the passage in her letter to Dr Kloer which is set out at paragraph 57 above and it informed him that she would be writing to Dr Kleor “to notify him of these concerns which have materialised as a result of the evidence contained in the Case Investigator’s report.” By letter dated 3 May 2018, she subsequently confirmed to the claimant that she had done so.

Thereafter, there was a meeting between the parties on 4 June 2018 to discuss the claimant’s continued exclusion and there was a meeting on 12 June 2018 to discuss the Decision Making Framework document and Dr Edmunds’ views as to next steps. The claimant then appealed against Dr Edmunds’ decision as to next steps on 19 July

However, the claimant heard nothing further from the defendant about Dr Edmunds’ 20 April 2018 letter to Dr Kloer, expressing concerns about the extent of the breakdown in working relationships, until 31 October 2018, some six months later. In the interim, however, a letter from Dr Kloer to the claimant dated 27 June 2018 had been prepared and signed but not sent. This stated, presumably by way of explanation of the then delay of more than two months, that Dr Kloer had wanted to reflect on Dr Edmunds’ letter and seek advice in relation to any necessary steps.

The 27 June letter went on to notify the claimant that:

“In this connection, I have now given this matter some consideration and sought advice. I am extremely concerned about the suggested extent of relationship breakdown in the Surgical team and given this issue was not formally investigated by Dr Robertson-Steel, I have decided to commission a separate investigation in order to determine whether there is in fact a serious breakdown in working relationships and if so, the extent of the breakdown. If it transpires that there is a serious breakdown in working relationships then I will need to consider whether this is remedial or whether it fundamentally impacts on you continuing in your role within the Health Board.” (emphasis added)

This investigation was to be carried out by Dr Roger Diggle.

The letter added that, having sought advice, Dr Kloer had concluded that it would not be appropriate to follow UPSW in relation to this matter as he did not consider that the concerns in relation to relationship breakdown related to capability, performance or conduct. Dr Kloer did, however, intend to follow a fair and transparent process “under the principles of the ACAS Code of Practice on Disciplinary and Grievance

On the face of this letter, it is therefore clear that:

In the course of the hearing before me there was some investigation of why this letter was not sent, given that it was signed and there was nothing on the face of the document to suggest that it was in draft. Dr Kloer gave oral evidence that the letter had been the subject of legal advice but that he had been concerned about how it was expressed and decided that further legal advice should be taken face to face, which he believed was done on 12 July 2018. The letter therefore was not sent. He also said that he had not necessarily signed the letter as his personal assistant was able to do so using his electronic signature. He acknowledged, however, that it would have been irregular for her to do so without his authority.

Given that the letter was attached to an email of 27 June 2018 from Sarah Jenkins of human resources to Karen Morris “Personal Assistant” (cc’d to Mr Stephen Morgan) which said: “Phil [i.e. Dr Kloer] signed this off yesterday with Steve. Can we get this sent out please today.” I consider, on the balance of probabilities, that the letter had been signed off by Dr Kloer and did reflect his intentions and understanding in relation to the working relationships investigation. I am, however, prepared to accept that the letter did not go out because there were concerns about its contents and further legal advice was taken.

Dr Kloer finally wrote to the claimant on 31 October 2018, notifying him of the working relationships investigation. The letter stated that:

“The Investigation Report and the Decision Making Framework highlighted that there were concerns regarding the working relationships with you and a number of your colleagues.… This led the Case Manager appointed under the UPSW process, Dr Eiry Edmunds to write to me as Medical Director raising concerns on 20 April 2018. Having now taken appropriate advice and after deliberating for some time, I have determined that an investigation is necessary in order to look into the concerns as appropriate”.

Dr Kloer notified the claimant that he had appointed Dr Roger Diggle and that it was proposed that the investigation was undertaken:

“1.

To consider the working relationships between you and your colleagues at the UHB; and

2.

(In particular) to consider whether or not there has been a breakdown in those relationships; and

3.

(If so) to consider between whom those working relationships have broken down; and

4.

(If so) to consider the extent to which working relationships have broken down; and to consider with you and your colleagues the issue of mediation in order to assess your and their willingness to participate in mediation to address any issues in respect of the working relationships.”

It was therefore clear that Dr Diggle was not being asked to investigate working relationships generally. The focus was to be specifically on the claimant and his working relationships with colleagues.

The claimant was informed that Dr Diggle would be in touch with him “in due course” to seek his views and to take a statement. He was told that he would have a right to be accompanied during the process, by a work colleague or trade union representative, but he did not have the right to legal representation. The letter stated in terms that: “to confirm this matter is not being considered under the Upholding Professional Standards in Wales, as we do not consider such a policy applies in this case.”.

Although the terms of reference were essentially the same, gone were the references in the 27 June 2018 letter which indicated that this was to be a disciplinary process in the course of which the claimant would make his case and as a result of which he might be dismissed. Indeed, the only potential “next step” referred to in the letter was discussion with the claimant and his colleagues of their willingness to participate in mediation.

The terms of reference were issued to Dr Diggle on 15 November 2018 and a copy was provided to the claimant. They included the four issues which were set out in Dr Kloer’s letter of 31 October 2018 and they contained the following passage:

“In addressing the above matters and questions, it is acknowledged that the investigation and written report should provide detailed evidence in respect of the state of the working relationships and in respect of the issue of mediation so that the UHB can reach conclusions as to whether there has been a breakdown in working relationships, as to the extent of any such breakdown and as to the utility of mediation. The UHB does not anticipate that it will be appropriate ornecessary for you to make findings in relation to other matters, such as fault orresponsibility for any breakdown in working relationships.” (emphasis added)

It is to be noted that this statement of what the defendant anticipated did not prohibit Dr Diggle from considering the reasons for any breakdown in the working relationship between the claimant and a given colleague. Nor, indeed, did it actually prohibit him from investigating, and taking a view about, who was responsible, or indeed at fault, for the relevant state of affairs.

Although the defendant said that it did not anticipate that Dr Diggle would make findings about these matters, it is difficult to see how he could assess the extent of any breakdown in working relationships and/or whether it was remediable without looking at the cause of the breakdown and the reasonableness of the respective positions of the claimant and the relevant colleague. If, for example, it was clear that the claimant had behaved badly and/or he was entirely unwilling to accept any responsibility for his actions this might well mean that a colleague who had lost trust and confidence in him would be unlikely to regain that trust and confidence in the context of a mediation. If, on the other hand, the claimant had not behaved inappropriately and/or what he had done was not particularly serious and/or he was apologetic then, assuming that the colleague was reasonable, it would seem more likely that the working relationship with that colleague would be capable of being restored. If, on the other hand, the colleague was acting unreasonably then a question would arise as to whether it would be fair for the claimant to suffer the consequences of this.

Between 8 November 2018 and 13 May 2019, when the claimant’s solicitors chased the defendant, neither party communicated with the other in respect of the claimant’s appeal against Dr Edmunds’ conclusions in her Decision Making Framework document. Dr Diggle did, however, carry out his investigations. I agree with Mr Sutton that the working relationships investigation had effectively supplanted the UPSW proceedings.

Between 30 January and 22 March 2019, Dr Diggle apparently interviewed eight of the claimant’s individual colleagues, most of whom were being interviewed for the third time about their dealings with the claimant, plus certain specialist cancer nurses. I was shown the notes of some of Dr Diggle’s interviews so as to get a flavour of what was being discussed. Predictably, the interviewees reiterated the problems in their working relationships with the claimant and give examples of his alleged behaviour which included a number of the examples which were relied on by the defendant in the UPSW proceedings in relation to Allegations 1 and 2.

The interviewees also criticised the claimant’s behaviour and blamed him for the breakdown in working relationships. It also appears from some of Dr Diggle’s questions that he was, at least, interested in the question whether the claimant’s behaviour was normal or abnormal. That Dr Diggle effectively told interviewees that he was carrying out an essentially disciplinary function is apparent from the fact that he introduced himself to them as conducting an investigation “under the ACAS rules”.

Dr Diggle’s report, which is undated but had been completed by 2 August 2019, albeit without interviewing the claimant, confirms the impression that Dr Diggle saw himself as carrying out a disciplinary investigation:

It is therefore plain that, entirely realistically, Dr Diggle considered that the investigation should focus on the claimant’s alleged behaviours and their impact on colleagues. And he recognised that he would need to take a view about whether, and what extent, the claimant was responsible and/or at fault in order to reach a sensible conclusion as to whether the reactions of his colleagues were genuine and/or to what extent, if at all, they were justified and/or remediable. He also recognised this as being a disciplinary investigation.

Nothing was heard from Dr Diggle by the claimant until, on 17 May 2019, Dr Diggle wrote inviting him to a meeting on 25 June 2019. Again, Dr Diggle referred to

As noted above, on 21 May 2019 the claimant responded in writing. His letter disputed, for the first time, the claim that the Diggle investigation fell outside UPSW and argued that the process should be stayed pending the outcome of the disciplinary proceedings against him.

Dr Kloer responded on 22 May 2019, saying that Dr Diggle was “well advanced with his enquiries”. He denied that he had any desire to circumvent the UPSW proceedings which, he said, would continue to be progressed. The working relationships investigation was, “separate” and would be progressed “outwith UPSW”.

There were further exchanges between the parties which, as noted above, did not resolve the matter. Proceedings were issued and, on 25 July 2019, interim relief was granted to restrain the defendant from requiring the claimant to be interviewed by Dr Diggle.

On 2 August 2019, Ms Morris then sent instructions to Mrs Clacey-Roberts, an Associate at Ibex Gale Limited, to conduct an investigation into working relationships between the claimant and his colleagues. Her terms of reference were the same as those of Dr Diggle’s investigation including the passage, cited above, which stated that it was not anticipated that it would be appropriate or necessary for her to make findings in relation to fault or responsibility for any breakdown in working relationships. The covering email attached various documents including Dr Diggle’s report, the correspondence between Dr Diggle and the claimant, 8 witness statements which had been prepared during Dr Diggle’s investigation, Dr Robertson-Steel’s report and a list of staff who might be relevant to interview.

The covering email to Mrs Clacey-Roberts added:

“I should make it clear if it is not already clear from the Terms of Reference, that you are not being invited to undertake a misconduct or disciplinary investigation concerning the behaviour conduct or capability of [the claimant], or any of the other witnesses you interview. As set out in the Terms of Reference the Health Board hopes and anticipates that it will not be necessary for you to apportion anyfault or blame in respect of the particular reasons for the breakdown. Rather the purpose of the investigation is to permit the Health Board to understand the extent of the breakdown in working relationships if there is any breakdown; what steps may be undertaken if any to remediate such breakdown; and the prospects of such steps been successful in addressing any breakdown in working relationships that you may identify.” (emphasis added)

Again, it is to be noted that the defendant implicitly recognised that Mrs ClaceyRoberts would be likely to examine the reasons for any breakdown in the working relationship between the claimant and a given colleague and it did not prohibit her from doing so. It hoped and anticipated that it would not be necessary for her to apportion fault or blame but it did not forbid her to do this either. As noted above in relation to Dr Diggle, although the defendant may have had this hope or anticipation, realistically she would have to look at the reasonableness or otherwise of the respective positions of the claimant and each of the colleagues who said that they were unable to work with him in order to decide the prospects of remediation and who should suffer the consequences if remediation was not possible.

On 7 August 2019, the claimant was notified of the appointment of Mrs ClaceyRoberts and provided with a copy of her terms of reference. He was told that this step had been taken “in the light of Dr Diggle’s recent retirement from the Health Board”.

It is apparent from Mrs Clacey-Roberts “interim” report, dated 22 October 2019, that she proceeded to interview 21 witnesses including re-interviewing 5 of the witnesses who were interviewed by Dr Diggle. Some of those who were involved in the incidents which originally gave rise to the UPSW proceedings were being interviewed for the third or fourth time about essentially the same matters. On the other hand, Mrs Clacey-Roberts cast her net wider in that 12 of the colleagues interviewed by her about their views of the claimant had not been interviewed as part of the UPSW proceedings. Consistently with the fact that she was concerned with working relationships, she did not interview individuals who were no longer employed by the defendant.

As to her approach to these interviews, Mrs Clacey-Roberts states, at paragraph 13 of her report, that:

“Where an individual identified that they (or others) had a poor working relationship with [the claimant], I explored with them their view of the basis for this. I do not make any findings as to whether any issues and/or incidents occurred as alleged or where any blame is attributable. I have been provided with a copy of the UPSW Investigation report (without appendices) and I accept the findings made within that report and I have referred to these findings where they are relevant to the working relationships between [the claimant] and his colleagues.”

In other words Mrs Clacey-Roberts may not have made her own express findings but she proceeded on the basis that the findings of Dr Robertson-Steel, including those which criticised the claimant’s conduct and behaviour, were well-founded and relevant to her investigation. Indeed, in Part 5 of her report she states, again, that where an interviewee had said that there was a poor working relationship she had “explored the reasons for that and I have looked at their willingness to work [with the claimant] in the future” (paragraph 48). At paragraph 49 she then says this:

“A number of the matters which were raised with me as being the reason for poor relationships are issues which had been investigated as part of the UPSW

Investigation. As such, there are a number of findings from the UPSP Investigation which are relevant to this investigation.”

She then lists ten of Dr Robertson-Steel’s findings against the claimant taken from Sections 8 and 9 of his report, which she describes as “particularly relevant”. These findings are essentially findings that the claimant’s lack of insight, attitude and behaviour were incompatible with working effectively as a member of his departmental team. By way of example, she notes that Dr Robertson-Steel found that:

In carrying out her investigation Mrs Clacey-Roberts also reviewed the defendant’s “Values and Behaviours Framework” which is at Appendix C to her report. In Part 3 of her report she then set out what she regarded as relevant passages from this guidance. At paragraph 20, Mrs Clacey-Roberts noted that the defendant has a set of organisational values and personal values. She then focused on personal values in particular:

“The personal values that the Health Board believes its employees should demonstrate daily are: (i) dignity, respect and fairness; (ii) integrity, openness and honesty; and (iii) caring, kindness and compassion.”

At paragraphs 21 to 23.2 she then provided further detail as to what each of these three requirements entails. For example, at paragraph 21 she noted that:

“The category of dignity, respect and fairness includes:

21.1

“take time to build professional relationships with colleagues, patients and stakeholders”;

21.2

“you respect people as individuals and are considerate”; and

21.3

“you communicate respectfully, openly and professionally”.”

Mrs Clacey-Roberts also reviewed various sources of external guidance including “Good Medical Practice” which was issued by the General Medical Council (“the GMC”) in 2013. At paragraph 25.1 to 25.7 she then listed a series of the GMC’s behavioural requirements of an individual practitioner which were taken from this document, such as to consult colleagues when necessary, “to promote and encourage a culture that allows all staff to raise concerns”, to work collaboratively with colleagues and respect their skills and contributions and to “treat colleagues fairly and with respect”.

Mrs Clacey-Roberts states, at paragraph 8 of her witness statement dated 12 November 2019, that she reviewed these materials “to assist with determining whether there had been a breakdown in the working relationships and, if so, whether they were capable of remediation”. It is therefore clear that she considered that it was relevant for her to consider, in addition to Dr Robertson-Steel’s criticisms of the claimant, the behavioural standards required of the claimant and to compare them with his actual behaviour as part of her overall task of assessing the prospects of remediation.

In her “Conclusions” section Mrs Clacey-Roberts states that there has been a complete breakdown in working relationships between the claimant and key colleagues, that it is highly unlikely that these relationships can be repaired through mediation and that if the claimant returned to the workplace it is likely that a number of Consultant and/or managerial resignations would follow. She says that it is highly unlikely that working arrangements could be organised so that the claimant worked separately from those with whom relationships had broken down.

Significantly, Mrs Clacey-Roberts says this in relation to the possibility of the claimant working at a different hospital run by the defendant:

Whilst there are vacancies for Consultant general surgeons at Bronglais,

As is clear from the passage, she therefore formed a view about the claimant’s “ability to work in a team and build relationships”. It is difficult to see how she could hold this view or reach her conclusion that he could not work elsewhere unless she accepted that the claimant’s behaviour was problematic and that he was to blame for the breakdown in relationships which she had found. Unless she had a view about his behaviour, attitude and conduct she could not express the view that moving the claimant to a different job at a different site was unlikely to resolve issues and risked further relationship breakdowns.

At paragraphs 295-295.5 of her report Mrs Clacey-Roberts explains the actual or likely impact of the “relationship breakdowns” by reference to the ability of colleagues to work effectively with the claimant, to communicate with him, to trust and respect him, to raise issues with him and to work with him in a way which was in accordance with the defendant’s values. This is a further illustration of the point that she was not conducting a general investigation into working relationships: her investigation was into the claimant’s working relationships. Moreover, the fact that Mrs Clacey-Roberts felt the need to consider the reasons for alleged breakdowns in working relationships, saw that the question whether the claimant was at fault was relevant and, indeed, had her own view on the matter, is unsurprising for the reasons I have given.

At the hearing before me there was some discussion of why Mrs Clacey-Roberts needed to redo the work which had been done by Dr Diggle. Mr Powell said that the defendant had been advised that it needed to commission a further investigation and that, as appears from Ms Morris’ covering email of 2 August 2019, it was left to Mrs Clacey-Roberts to decide, in the light of the statements which were already available, whether she wished to re interview witnesses. At all events, it appears that Mrs Clacey-Roberts took more care to avoid expressly characterising her investigation as disciplinary in nature and making her own findings of fault on the part of the claimant than Dr Diggle did although, in my judgement, she was not entirely successful in this endeavour.

The hearing of the claimant’s appeal against Dr Edmunds’ decision as to next steps took place on 2 September 2019. The appeal was not successful.

In explaining why disciplinary proceedings under the Extended Procedure were appropriate, the Appeal Panel emphasised the seriousness of the alleged problems with the claimant’s relationships with his colleagues. The Panel was satisfied that the claimant had demonstrated “a lack of insight into the workings of the department and the responsibility to work as a team”. It referred to his “negative interactions” with nine listed colleagues. It noted that there was “unanimity that the conduct of [the claimant] adversely impacted on the working of the Department.”:

“The concerns about [the claimant’s behaviour and conduct were not limited to a small number of people or to a particular staff group. They extend across a wide range of individuals who were clinical and non-clinical staff. They are clearly much more than differences of professional opinion.”

The Appeal Panel also noted that the actions of the claimant had “had a very significant and negative impact” on colleagues and that “the concerns cover a wide range of actions and conduct by [the claimant] including communication style, working relationships and methods of working.”.

Thereafter, the parties corresponded about the arrangements for the Inquiry Panel hearing which was to take place pursuant to paragraphs 5.2-5.6 of UPSW.

The Inquiry Panel hearing took place between 20 and 24 January 2020 and was chaired by Mr Angus Moon QC. The terms of reference for that hearing cover virtually all of the issues investigated by Dr Robertson-Steel, whose report was in evidence, albeit with those passages which refer to Allegation 2 redacted. Paragraphs

Witnesses who had been interviewed by Dr Edmunds, by Dr Robertson-Steel and, in a number of cases, by Dr Diggle and/or Mrs Clacey-Roberts were called to give evidence and cross examined. I understand that a total of 15 witnesses gave evidence.

Although the evidence was completed, there was insufficient time for the parties to make closing submissions and a further hearing was listed for this purpose on 23 March 2020. The Panel has directed that this be about facts only and that the question of fault will be dealt with at a subsequent hearing. It is not known when the first stage will be completed, still less the second stage. The matter may then go to a Disciplinary Panel hearing and then potentially on to an appeal. I accept that there

A draft of the NCAS referral was sent to the claimant for comment on 18 December

The witness statements relied on by the defendant were at pains to explain why the working relationships investigation was launched and, the merits of the defendant’s approach, but they were less specific about precisely what the scope of the investigation would be.

As to why the investigation was launched, in summary it was said that:

I also detected an understandable desire on the part of the defendant to “cut to the chase”. If the reality was that there was no prospect of the claimant returning to work for the defendant because of an irretrievable breakdown in working relationships it was considered that it would be better for all concerned to face that reality sooner rather than later. Mr Powell did not deny this.

As to the precise scope of the investigation, paragraph 41 of Dr Kloer’s first witness statement, dated 3 July 2019, drew attention to Dr Diggle’s terms of reference and, in particular, the passage, cited above, which stated that it was not anticipated that it would be appropriate or necessary for him to make findings on questions such as fault or responsibility for any breakdown in working relationships. Paragraph 49 of Dr Kloer’s witness statement states:

“The issue which is currently under investigation by Dr Diggle is whether there has been a breakdown in working relationships, the extent of that breakdown and the potential for mediation. It is the view of the Health Board that those matters have been correctly classified as falling outside of UPSW because they are not issues of conduct or capability relating to [the claimant]…. That the breakdown in working relationships have (sic) arisen out of the behaviour or performance of [the claimant] the perception of his behaviour or performance, the behaviour or performance of others or their perception of others behaviour or performance does not make them issues of conduct or performance on the part of [the claimant]”

In his oral evidence Dr Kloer emphasised that his concern was about “teamworking”. He accepted that Dr Robinson-Steel had a good vantage point from which to assess working relationships as a result of his investigation but Dr Kloer said that his concern was that Dr Robinson-Steel was looking at these issues as allegations of misconduct rather than looking more broadly at whether working relationships were or were not functioning and, if not, what could be done about this. Dr Kloer said that looking at the matter from a different perspective might throw up factors which were not relevant to Dr Robinson-Steel’s investigation.

In his witness statement dated 11 October 2019 Mr Stephen Morgan, who apparently advised Dr Kloer from a human resources perspective, states his view that UPSW

“was not intended to address unforeseen issues which are not categorised as either conduct or capability”. At paragraph 14 he says “essentially it was my view that UPSW did not apply to or cater for an investigation or resolution of an issues (sic) concerning a breakdown in working relationships. That was endorsed by the legal advice I obtained, the content of which is privileged and remains [so]”.

It seemed to me that the evidence of the defendant’s witnesses contained a number of assertions about UPSW but did not address, in any detail, the practical realities of what the working relationships investigation would entail. None of the defendant’s witnesses ruled out the possibility that consideration of the reasons for any breakdown in working relationships and/or whether the claimant’s behaviour was problematic would be relevant and nor did Dr Kloer in his oral evidence. Although Dr Kloer said, at paragraph 49 of his witness first statement (noted above at paragraph [114]), what he understood Dr Diggle to be investigating and asserted that these matters did not fall within UPSW because they were not issues of conduct or capability relating to the claimant, in fact Dr Diggle did treat the matter as disciplinary in nature and apportion

Mr Morgan’s witness statement said that no decision had been taken about the working relationship issue yet, and that the defendant would respect the outcome of the investigation and consider Mrs Clacey-Roberts’ recommendations when they were made. But, other than this, the witness statements submitted on behalf the defendant were somewhat reticent on the question what would happen if it was concluded that the working relationships between the claimant and his colleagues were not capable of being repaired.

Mr Powell maintained that the defendants were agnostic at this stage but he did not deny that a potential outcome of the working relationships process is dismissal. Indeed, as matter of common sense this seems at least a possibility on the materials I have seen so far, given the terms of the letter of 27 June 2018 and given that the defendant also relies on the witness statement of Mr Henwood who makes a number of criticisms of the claimant in his evidence and concludes that “the breakdown in working relationships is irretrievable” for which he blames the claimant. His final paragraph reads, so far as material, as follows:

Although Mr Powell maintained that the claimant might say something in his proposed interview with Mrs Clacey-Roberts which would make reconciliation with his colleagues a realistic possibility. In her witness statement dated 12 November

If this view is right (and I express no view for the reasons I have given), the possibility of a return to work for the claimant pending the outcome of the UPSW proceedings appears likely to be regarded by the defendant as inconceivable absent anything short of full acceptance of the blame, an abject apology and an undertaking that there will be no repetition. Even then, it seems highly unlikely that the defendant would decide to permit a return to work on the evidence I have seen.

The parties agreed that it was for me to decide whether the issues and concerns which are being considered in the working relationships investigation are ones which the Contract requires the defendant to investigate under UPSW. This is not a case, like Braganza v BP Shipping Ltd [2015] ICR 449 UKSC, where it is for the employer to determine the issue subject only to arguments based on bad faith, breach of mutual trust and confidence or irrationality. Essentially the same view was taken, albeit in the context of different contractual provisions, in Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 at paragraphs 15-16 and in Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2013] ICR 270 CA at paragraph 81.

In relation to the overall approach to contractual interpretation, the parties made passing reference to the well-known principles set out by Lord Hoffmann in the Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912. I have also borne in mind the more recent guidance from the Supreme Court in Arnold v Britton [2015] AC 1619 paragraphs 14-23 and Wood v Capita Insurance Services Ltd [2017] AC 1173 paragraphs 8-14.

Mr Sutton also placed reliance on the following dicta which, he submitted, showed that a purposive approach should be adopted:

For his part, Mr Powell relied on paragraphs 47 and 48 of the judgement of Elias LJ in Christou v Haringey LBC [2013] ICR 1007 CA where he stated that the purpose of disciplinary procedures:

“is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and, if so, to determine how that should affect future relations between them.”

This passage is helpful as far as it goes but the issue which Elias LJ was addressing in Christou was whether a disciplinary process in the context of employment is sufficiently analogous to the litigation process for the res judicata principle to apply. He was seeking to draw a contrast between the two processes, rather than giving guidance on how the interpretation of employment disciplinary procedures should be approached.

I consider that, in interpreting the contractual provisions in the present case, I should obviously have regard to the words which define the application of UPSW and the content of the Procedure as a whole with a view to considering whether it contemplates that the relevant issues or concerns will be dealt with under the machinery which it establishes.

The context in which the provisions were agreed is also important i.e. one in which there is a public interest in the effective and efficient management of the conduct, capability and performance of medical professionals but there is also potentially a great deal at stake for the practitioner and the Procedure may provide them with an opportunity for vindication. In this connection, Mr Powell accepted that if the claimant was dismissed as a result of the findings of Mrs Clacey-Roberts he would not be entitled to insist that the UPSW proceedings be completed. Mr Powell said that the defendant would do so voluntarily but he did not give a formal undertaking to this effect. Even if he had, the voluntary actions of one employer cannot affect the interpretation of a procedure which is applicable nationally. Finally, I should work on the basis that the parties to UPSW considered that it struck a fair balance between these important, potentially competing, interests or, at least, that the faithful application of the Procedure would ensure fairness.

In the context of statutory employment protection, the fact that different employers may have different “takes” on a given factual situation, and therefore have different reasons for their responses to it, is well recognised. This is inherent in the fact that a person’s reason for his actions is a subjective question. In my view, however, any analogy between the present case and the cases on statutory employment protection should be approached with caution given that, in the latter, the issue as to the employer’s reasons turns on the interpretation and application of the particular statute under consideration including, in the case of the Equality Act 2010 for example, its EU law underpinning. There are also differences between the statutory torts in terms of the degree of connection required between the employer’s reasons and the actions complained of. In the case of direct discrimination, for example, it is sufficient if the protected characteristic is a significant or material influence on the employer’s thinking (Nagarajan v London Regional Transport [2000] 1 AC 501). In the case of unfair dismissal, the question is as to the employer’s “reason (or, if more than one, the principal reason for the dismissal” (section 98(1)(a) Employment Rights Act 1996).

Mr Powell placed particular reliance on cases which are concerned with the dividing line, for the purposes of the law of unfair dismissal, between dismissal for a reason “which relates to the conduct of the employee” (section 98(2)(a) Employment Rights

One of the authorities on which Mr Powell relied to illustrate this point is Perkin v St George’s Healthcare NHS Trust [2006] ICR 617 CA where a breakdown in working relationships led to the dismissal of the claimant. The claimant director of finance had been asked to resign by the chief executive of the Trust because of his management style and perceived lack of ability to represent the Trust. He had responded by lodging a grievance and the Trust then began disciplinary proceedings against him. In the course of the disciplinary proceedings he attacked the honesty and integrity of the chief executive and accused a colleague of lying. The Trust’s dismissal letter stated that he was being dismissed because of his failure to engage with service centre chairs and other clinicians which had resulted in a loss of confidence in him as director of finance. It also said that he had taken a “disabling and negative approach” rather than contributing constructively to finding a solution to the problem, as a result of which his relationship with the executive team had broken down. But the Trust also considered that his conduct at the disciplinary hearing would in any event have led to his dismissal.

In discussing the Trust’s reasons for dismissing the claimant, the employment tribunal’s Reasons did not distinguish between “conduct” and “some other substantial reason”. The tribunal said that “In a nutshell the difficulties that gave rise to the matters which led to [the claimant’s] dismissal were those of personality and inter-relation with colleagues and of management style”. It appeared to accept the Trust’s case as to its reasons for dismissal, characterising them as “style of working… manner of dealing with….requests for information which resulted in his not only being perceived as not being a corporate/team player but actually not playing a proactive part in effectively assisting the managers to suggest and implement a cost saving programme”. The tribunal also made references to “problems of personality approach and trust and confidence”. It found that the claimant’s dismissal was for a permissible reason, that the dismissal was procedurally unfair but that a reduction of

The appeal to the Court of Appeal was on the basis that the claimant was dismissed on account of his personality. It was said that this was not capable of constituting

“conduct” within the meaning of section 98 (2)(b) of the 1996 Act and capability had never been relied on by the Trust. Had the employment tribunal analysed the reason for dismissal correctly, it was argued, it would have approached the question of fairness differently and would not have made a 100% reduction to the claimant’s compensation.

The Court of Appeal considered that this was a “some other substantial reason” case but held that the incorrect classification of the reason for dismissal did not matter as, on any basis, there was a permissible reason for dismissal and the classification did

At paragraph 62, Wall LJ also agreed with Sedley LJ’s view, when refusing permission to appeal on paper that “this was a “some other substantial reason” case: an employee in a senior position could not or would not work harmoniously with colleagues and outsiders with whom a harmonious relationship was essential.”. At paragraph 63 Wall LJ went on to say:

“I see this, speaking for myself, as a case falling within some other substantial reason rather than conduct, and it would have been preferable, in my judgement, if the employment tribunal had so analysed it. However….I do not see the tribunal’s failure to categorise the reason as fatal to its reasoning or to the safety of its decision”. (emphasis added)

Perkin is thus a case in which the Court of Appeal expressed a view as to the classification of the reason for dismissal but considered that this did not affect the outcome of the case. Although it has been applied in subsequent cases Perkin did not turn on the classification of the reason for dismissal and the Court of Appeal therefore did not analyse the terms of section 98(2(a) of the 1996 Act closely. I also think that it is arguable that Perkin was a case in which the reason for dismissal “relate[d] to the conduct of the employee”. Arguably, this is a broad formulation, not necessarily requiring misconduct, and “some other substantial reason” under the statute is very much a residual category of case in which it cannot be said that the employer’s reason is even “related to” the employee’s conduct or capability. But I do not need to decide this issue, and nor am I bound by Perkin given that the present case turns on the interpretation of the claimant’s contract of employment rather than the interpretation of the 1996 Act.

Mr Powell also relied on the decision of the Employment Appeal Tribunal in Ezsias v North Glamorgan NHS Trust (No 2) [2011] IRLR 550. Here, a maxillofacial surgeon was dismissed after nine senior members of his department signed a petition registering their grave concerns about what they saw as a lack of progress in resolving their concerns about his “excessively frequent, unacceptably detailed and unrelenting to an extreme degree” complaints against them. He was dismissed without disciplinary proceedings against him and part of his case was that his dismissal was unfair because the employer had, in breach of contract, failed to follow Whitley Council disciplinary procedures which were applicable to “allegations of misconduct" and distinguished between allegations of personal or professional misconduct. This point therefore turned on the application of the particular terms of his contract.

Applying Perkin, the employment tribunal found as a fact that the reason for dismissal was the breakdown in working relationships between the claimant and his colleagues, and therefore “some other substantial reason” rather than “conduct”, so that the Whitley Council procedures did not apply. The Employment Appeal Tribunal did not interfere with this conclusion. Keith J said this at paragraph 53:

“..the tribunal was alive to the refined but important distinction between dismissing [the claimant] for his conduct in causing the breakdown of relationships, and dismissing him for the fact that those relationships had broken down.….although as a matter of history it was [the claimant’s] conduct which had in the main been responsible for the breakdown of the relationships, it wasthe fact of the breakdown which was the reason for his dismissal (his responsibility for that being incidental).” (emphasis added) 139.At paragraph 54, Keith J went on to say:

“Once you have excluded [the claimant’s] responsibility for the breakdown of the relationships as the cause of, or a factor contributing to, that breakdown, and you concentrate only on the fact of the breakdown of the relationships, the answer, in our view is inevitable. However you characterise the reason for the action taken against him, it was not his conduct.” (emphasis added)

In other words, it was found as a fact that the sole reason for dismissal was the fact of the breakdown in working relationships rather than the reason for the breakdown. The claimant had not been dismissed because an “allegation of misconduct” against him had been upheld and there had therefore been no breach of the terms of his contract. As Keith J said at paragraph 58

“…We do not suppose that those who were responsible for negotiating the Whitley Council terms had this in mind, but the fact is that the Whitley Council terms do not apply to cases where, even though the employee's conduct caused the breakdown of their relationship, the employee's role in the events which led up to that breakdown was not the reason why action was taken against him. We have no reason to think that employment tribunals will not be on the lookout, in cases of this kind, to see whether an employer is using the rubric of 'some other substantial reason' as a pretext to conceal the real reason for the employee's dismissal.”

Permission to appeal was refused by Elias LJ on the papers and then by Mummery LJ at an oral hearing: see [2011] EWCA Civ 1440. Mummery LJ held that the argument on behalf of the claimant impermissibly sought to go behind the tribunal’s finding that the reason for dismissal was the objective fact of the breakdown of relationships in the department and to look at what Mummery LJ called “the reasons for the reason”.

At paragraph 21 Mummery LJ agreed with the submission that “It would obviously be wrong… for an employer in a case to which the contractual disciplinary procedure applied to seek to sidestep it by categorising allegations of personal professional misconduct as some other substantial reason, or, …… as breaches of the implied duty of trust and confidence”. However, on the tribunal’s findings, this was not what had happened in that case. He also approved Elias LJ’s observation that employment tribunals “must be alert to the possibility that an employer will seek to evade the disciplinary procedures by describing the reason for dismissal as a breakdown in a relationship”. Indeed, this is an important safeguard against abusive behaviour by the employer. But it remains the case that, at least in the context of statutory employment

The parties also drew particular attention to a trilogy of cases in which claims for injunctive relief based on breach of contract were made in the courts by NHS medical practitioners. In each case the practitioner alleged that they were entitled to the protection of contractual disciplinary procedures in relation to investigations being carried out by their employer and/or attempts to dismiss them.

The first of these cases was Lauffer v Barking, Havering and Redbridge University Hospitals NHS Trust [2009] EWHC 2360 (QB). Here, the claimant consultant general surgeon was entitled to the protection of the disciplinary procedures set out in MHPS which apply to concerns about the “conduct, performance and health” of medical and dental employees as these terms defined or described in those procedures. Various concerns about the claimant’s clinical performance arose, as a result of which he was suspended from practice and his registration was suspended on an interim basis by the GMC.

On 16 September 2008 the claimant was invited to a formal disciplinary hearing. The allegation against him was “unprofessional conduct” based on two particular episodes which had led to a loss of trust and confidence in him. When the claimant argued that these were issues of capability, there were various delays culminating in an invitation to a “catch up” meeting on 25 June 2009 at which the claimant was handed a letter purporting to give him three months’ notice of termination on the grounds that there had been a loss of trust and confidence in him.

The claimant applied for interim injunctive relief and the central issue was whether there was a serious issue to be tried as to whether the Trust was in breach of contract in failing to address its concerns under MHPS. Holroyde J (as he then was) accepted that, in principle, a loss of trust and confidence between employer and employee may be “some other substantial reason” which is capable of justifying dismissal but he granted interim relief. His view was that a common theme in the witness statements relied on by the defendant was that “what has given rise to concern about the claimant is his lack of judgement and his lack of insight”. It was strongly arguable that these went to the claimant’s capability to perform his role as a surgeon.

Mr Sutton places reliance on Holroyde J’s reasoning in coming to his decision. In particular:

In my judgement these passage highlight evidential features of the Lauffer case which led to the conclusion that interim relief was appropriate, rather than establishing any generally applicable legal principle. Apart from the fact that Lauffer was an application for interim relief, and Holroyde J therefore merely accepted that the claimant’s case was “strongly arguable”, in the light of the well-established principles in the case law on statutory employment protection, he cannot be taken to have been saying that there can never be cases in which an employer’s concern is solely about effect rather than cause.

Secondly, a key feature of the Lauffer case was that the only cause of the alleged loss of trust and confidence was Mr Lauffer’s alleged lack of judgement and insight. This was not presented as a “dysfunctional working relationships” case (i.e one where the concern was that colleagues would not work with him) and it was therefore significantly more difficult for the Trust to persuade the court that cause and effect could be distinct concerns (in this connection, see the remarks of Underhill P as he then was in Macfarlane v Relate Avon Ltd [2010] ICR 507, paragraph 39). Moreover, the fact that the Trust had changed course, having previously regarded the matter as an issue to which the disciplinary procedures did apply, was a further evidential pointer to the conclusion that its professed reason was not its true reason. There were also other aspects of the Trust’s behaviour which supported this view.

In my view Lauffer should therefore be seen as a case in which, on the facts, it was strongly arguable that the employer’s professed reasons for its actions were not its real reasons.

The second case in the trilogy is Kerslake v North West London Hospitals NHS Trust [2012] EWHC 1999 (QB). This was another case in which the contract of a Consultant Obstetrician and Gynaecologist incorporated MHPS. Ms Kerslake had problematic relationships with three key colleagues and, in February 2009, lodged a grievance against them in which she complained that two of them were bullying her, interfering with and placing unnecessary restrictions on her work, as well as engaging in unprofessional conduct. The complaint against the third colleague was that he had not taken adequate steps to improve working relationships with the other two colleagues and had failed to protect her clinical practice.

In response to this grievance, the Trust asked a distinguished independent practitioner to investigate. He rejected Ms Kerslake’s complaints and found that she was not fit to practice as an independent consultant surgeon in her field. As a result, the Trust suspended Ms Kerslake and referred her to NCAS, pursuant to MHPS, for an assessment of her capability.

NCAS found that in fact Ms Kerslake was performing at a satisfactory level for a consultant so that, in principle, there was no reason why she could not continue to work as such. In its final conclusions, however, NCAS pointed out that “given the breakdown in the relationship between Miss Kerslake and [the Trust] (as detailed by both parties), the Trust will need to consider the feasibility of Miss Kerslake’s reintegration”.

When he received the NCAS assessment Professor Shaw, the Medical Director of the Trust, asked an outside firm of solicitors, Capsticks, to investigate whether, as a matter of objective fact, there had been a breakdown in relationships between Ms Kerslake and her colleagues “regardless of who (or indeed whether anyone) was to blame” for this. Capsticks duly investigated and its report stated that there was “a clear lack of trust and confidence” in Ms Kerslake. Whilst she considered that the issues were in the past and there was no problem with her returning to work, and while some others shared this view, various colleagues, including one of the individuals she had complained against and five other consultants, expressed serious concerns about her. Those concerns were, broadly, about her performance as a clinician.

The advice of Capsticks was that the concerns of Ms Kerslake’s colleagues should be considered. The Capsticks view was that MHPS did not apply as the issues to be considered did not involve conduct, capability or ill-health. The issue of capability had been fully explored and excluded as a concern by NCAS and Ms Kerslake’s behaviours could not possibly be identified as misconduct. Any possibility of dismissal therefore could only be considered on a “some other substantial reason” basis and dismissal would only be appropriate if it were found that trust and confidence had irretrievably broken down. They recommended that there be a formal hearing to determine whether there had in fact been an irretrievable breakdown in trust and confidence between Ms Kerslake and the Trust resulting from irreconcilable differences in day-to-day working relationships between her and other key members of the department.

The breach of contract claim which came before HHJ Curran QC, sitting as a High Court Judge, was for, amongst other things, an injunction to prevent the process from going any further. That claim was unsuccessful. Judge Curran accepted that the Trust was acting in good faith at all material times in its dealings with Ms Kerslake. He accepted that Professor Shaw genuinely accepted the conclusion of NCAS that Ms Kerslake was clinically competent and that he was entirely genuinely seeking to address the question of reintegration when he commissioned the Capsticks investigation. Professor Shaw was not seeking to sidestep MHPS and/or to dismiss Ms Kerslake by a more convenient procedural route. There was therefore no sense in which Professor Shaw was acting capriciously, arbitrarily or irrationally or in breach of mutual trust and confidence.

Judge Curran went on to find that, as a matter of contractual interpretation, it was inappropriate for MHPS to be applied to the investigation of a possible breakdown in relationships between employees “where (a) the suggested basis [for the] breakdown is a perception of lack of capability; and (b) assertions of such lack of capability have already been formally and properly investigated and found to have no substance” (paragraph 151 (4)).

This, then, is the key to the Kerslake decision. The MHPS process had been completed and any concerns about Ms Kerslake’s capability or conduct had been finally determined in her favour. As Judge Curran put it:

“for Professor Shaw, capability was a matter which was cut and dried. He had no choice but to accept the NCAS report….He did so in good faith, so that that, as Medical Director, represented his subjective view. It was also the only view which could be taken objectively.” (paragraph 169).

The Judge on to say, at paragraph 170, that:

“in no meaningful sense of the word was the issue under investigation one which involved the ‘conduct’ of the claimant of the Claimant… It is more realistic to say that the “conduct” of those who oppose her return is possibly involved…” .

By way of explanation of this point:

At paragraph 186 Judge Curran QC drew a contrast with the situation in Lauffer:

Judge Curran QC accepted that the Trust was genuinely concerned solely with the feasibility or otherwise of reintegrating Ms Kerslake into its workforce given the evidence of a breakdown in working relationships between her and her colleagues. He accepted Professor Shaw’s evidence that he needed “some information on the breadth, depth and magnitude of the other consultants views … To get a measure of whether reintegration [would] not be feasible, which could result in a dysfunctional team, and that in turn endangering patient safety”. The concern was “not to measure why people held that view but to assess the extent of that view and to try to get a sense of whether that view was reversible” (paragraphs 167 and 168).

In my judgement Kerslake is therefore a case where, on the evidence, the court was able to conclude that it was no part of the Trust’s purpose to investigate concerns about the claimant’s capability or conduct. That conclusion was more readily available to the court than in the present case because the MHPS process had been undertaken and completed. In contrast to the present case, the issue as to the appropriate procedure arose in the context of consideration of whether the claimant could be reintegrated into the workforce having been exonerated. Given that the Trust genuinely accepted that the claimant was both competent and blameless, absent bad faith it was logical to conclude that it could not be investigating concerns about her competence or conduct. Added to this, and again in contrast to the present case, Professor Shaw was quite clear as to the narrow issue which was to be considered – there was no interest in why relationships had broken down - and the court was able to take the view that that the Trust was proceeding on the basis that the colleagues had a mistaken and unreasonable view of the claimant but that it was strongly and genuinely felt.

The third case in the trilogy is Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 HC. Here, Dr Jain was employed by the Trust as a Consultant Radiologist. In November 2015, the Trust embarked on proceedings under Part IV of MHPS which were said to relate to Dr Jain’s clinical practice. The concerns related to (1) participation in breast assessment clinics, (2) film reading performance, (3) a serious untoward incident and (4) “on going issues concerning Dr Jain’s interpersonal and communication style regarding his relationships and approach to

In March 2017, the Trust proposed a “stay” of the MHPS investigation and mediation between Dr Jain and the other Consultant Radiologists in the Breast Service. It was then agreed between the parties that there would be a relaxation of certain of the restrictions on Dr Jain’s practice and that there would be a mediation involving Dr Jain and other consultant radiologists as part of the return to work.

The mediation took place in June/July 2017 and was unsuccessful. The mediator reported that:

“in the light of the strength of feeling against Dr Jain it would appear that relationships have irretrievably broken down and hence it is no longer possible for this group of people to work with Dr Jain. This being the case it would not be possible to achieve a safe team, due to the level of dysfunction, while the membership of the team remains unchanged.”

The Trust subsequently wrote to Dr Jain stating that, although it was committed to the principles of reintegration, it was now apparent that there were fundamental issues which could impact on the Trust’s ability to integrate him into the team that needed to be investigated before any further action was taken. An independent inquiry into the impact of the breakdown in relationships reported by the mediator would therefore be commissioned in the light of the fact that all of the consultants within the Breast Radiology team had indicated that they felt unable to support his reintegration into the team or to work with him in future.

A Ms Lockett was instructed to carry out the investigation. Her terms of reference were:

“4.1

To investigate the extent to which relationships have broken down between Dr Jain and his colleagues in the Breast Radiology Team; and

4.2

To investigate the potential impact that such breakdown in relationships may have on the proper functioning of the Breast Radiology team, and delivery of safe patient care, should Dr Jain be permitted to return to his former duties (if appropriate and subject to clinical concerns being properly addressed); and (emphasis added)

4.3

To investigate any factors that may ameliorate the potential impact on the proper functioning of the Breast Radiology team and the delivery of safe patient care”

Dr Jain issued proceedings for breach of contract, amongst other things, on the basis that the Trust was not permitted to carry out an investigation outside MHPS in circumstances where an investigation under Part IV of MHPS into the same matters was currently suspended and/or without seeking to resolve the underlying concerns pursuant to Part IV.

Importantly, Swift J held that MHPS was not incorporated into Dr Jain’s contract of employment. He accepted, however, that the provisions of MHPS were relevant considerations when determining whether the Trust had acted consistently with the implied duty of mutual trust and confidence. Indeed, he held that, the Trust having made clear that its concerns relating to Dr Jain’s competence and professional relationships would be addressed under Part IV MHPS, “the obligation to maintain trust and confidence required the Trust to follow the procedure set out in that part of the MHPS unless there was a justifiable reason not to do so.” (paragraph 35)

At paragraphs 57-64 Swift J concluded that there had not been a breach of the duty of mutual trust and confidence. He noted that the Lockett investigation did reflect the key features of MHPS (paragraph 60).

Importantly, at paragraph 61 Swift J also considered that “The matters within Mrs Lockett’s terms of reference did not sit easily with the description of capability issues in Part 4 MHPS, paragraph 3”. I agree with him on this point. Paragraph 3 described capability issues as follows:

“…occasions where an employer considers that there has been a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge, ability or consistently poor performance.” 173. Swift J added:

“As I see it, given the other allegations in the November 2015 investigation that were clearly capability issues, it made sense then for the allegation about interpersonal communication style to be wrapped into the MHPS investigation. But, by December 2017, following the mediation, the issue of working relationships had taken on a far greater importance, such that the Trust could appropriately conclude that it was a matter that was not simply or obviously an MHPS capability matter.” (paragraph 61)

Swift J accepted that there was a link between the matters which were being considered in both investigations but did not consider that this gave rise to a breach of the implied term given that the difference between the two processes was “slight” and given that that the terms of reference for the Lockett investigation rested on the premise that the capability concerns could and would be addressed separately. The simple existence of a link between the November 2015 issues and the issues which were to be investigated by Ms Lockett was not sufficient to require the Trust to treat the investigation as an MHPS investigation (paragraph 63).

Nor did Swift J consider that the fact that the possibility of further formal action was left open meant that the commissioning of the Lockett investigation was a breach of mutual trust and confidence:

“As I have said, in this case, the contents of the MHPS inform but do not necessarily determine the content of the trust and confidence obligation. The outcome of the mediation put a new light on the state of the working relationships between the Claimant and the remainder of the consultant radiologists in the Breast Service, and that being so, the decision to commission the Lockett investigation was not a breach of the trust and confidence obligation.” (paragraph 64)

Jain was therefore a case which turned on the duty of mutual trust and confidence rather than directly on the interpretation of MHPS. Swift J found that the Trust had not breached this term given that it was genuinely concerned only with the question of working relationships in the context of the proposed reintegration of Dr Jain into the team, given that the concerns which had given rise to the working relationships issues did not readily fall within the description of capability under the MHPS (i.e. the procedure probably did not apply in any event) and given that in substance the key requirements of MHPS had been complied with. Evidently, Swift J also considered that the issues relating to Dr Jain’s interpersonal and communication style were readily separated from the other three matters which were being investigated under the MHPS procedure, in contrast to the present case where the matters which are the subject of the UPSW proceedings are intertwined with the concerns about working relationships.

At points in his oral submissions Mr Sutton appeared to come close to arguing that Lauffer and Kerslake and Jain establish rules or at least rules of thumb: if contractual disciplinary process is ongoing (Lauffer) it will not be permissible to begin a different process relating to the same evidential material; if, on the other hand, the contractual process has been completed (Kerslake) it may be permissible to embark on an extracontractual process relating to linked issues; if the contractual process has effectively been stayed (Jain) the same may be true. If this was his argument, I do not accept it. Whilst I agree with Mr Sutton that these were important evidential features of these three cases, each turned on its particular facts. In Lauffer the evidential position was such that the court was unwilling to accept (at least at the interim stage) the Trust’s case as to its true reasons for the disciplinary proceedings which were challenged. In Kerslake the evidential position was such that the court was willing to do so and it held that the terms of the particular contractual procedure, MHPS, did not apply to these reasons. In Jain the case turned on the question of breach of mutual trust and confidence rather than the true construction of MHPS, although the court considered that the issues in the Lockett investigation were probably not issues of capability as defined.