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What is so Special about Doctors?

Doctors dominate the law reports when it comes to injunctions and internal disciplinary proceedings.  Daniel Tatton-Brown considers whether there is any reason in principle for their pre-eminence.

Different professions seem to dominate different areas of employment law. For instance, the knotty problem of “substitution” in the context of unfair dismissal cases – i.e. the issue of whether a tribunal’s conclusion that a decision to dismiss was unreasonable is an example of it illegitimately substituting its decision for that of the employer – seems to have been near monopolised in the higher courts by care workers:Tayeh v Barchester Healthcare Ltd [2013] IRLR 387; Crawford v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402 CA; and London Ambulance Service NH Trust v Small [2009] IRLR 563 being just three recent CA decisions to illustrate the point.

In the context of injunctions and internal disciplinary proceedings, however, doctors reign supreme.West London Mental Health NHS Trust v Chhabra [2013] UKSC 80 is of course the most recent and authoritative example. What lies behind this dominance?

The well- known American Cyanamid test requires the court to address three issues before granting an interim injunction: is there a serious issue to be tried? Would damages be an adequate remedy? And what does the balance of convenience require? In the context of internal disciplinary proceedings the “serious issue” will normally be an arguable breach of contract. This surely explains part of the doctors’ dominance: doctors’ disciplinary procedures are unusually detailed and complex, providing considerable scope for arguments that the Trust employer is acting (or is threatening to act) in breach of contract.

Chhabra of course provides a classic example of this. But it also provides a basis for arguing that any employee faced with an unfair disciplinary process can take up arms against her employer. Hidden within Lord Hodge’s leading judgment is the observation (at para. 36) that Dr Chhabra had an implied contractual right to a fair process. A very similar observation was made by Slade J in Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178 (QB), 122 BMLR 43,[2011] All ER (D) 66 (Aug) where she held that it is “no doubt an implied term of contracts of employment that disciplinary processes be conducted fairly and without undue delay”.

The precise basis on which such a term can be implied was not explored or explained in either case: but it perhaps no longer matters. If there is such an implied term then presumably any employee who can lead evidence that a proposed disciplinary process, whether contractual or not, and whether rudimentary or complex, was not being conducted fairly, could establish an actual or threatened breach of contract. So long as the alleged unfairness was not so minor that an invitation to the court to intervene could be characterised as micromanagement, a triable issue would be established. This suggests that there is nothing special about doctors. The point can be illustrated by Chhabra itself. Lord Hodge held that one of the reasons an injunction should be granted was that, in breach of a promise from the Trust’s solicitors that a particular HR director would not be involved with the investigation into her alleged misconduct, the director had in fact proposed amendments to a report that “stiffened” criticism of Dr Chhabra. That, according to Lord Hodge, amounted to a breach of “the obligation of good faith in the contract of employment”; and was a sufficiently serious irregularity as to justify the court’s intervention. That sort of finding could apply to any employee; it is not dependent on the intricacies of the contractual procedures that applied in Dr Chhabra’s case.

Doctors facing disciplinary charges point to the difficulty of finding alternative employment within the near-monopolistic NHS if misconduct charges are upheld against them, when arguing that damages are not an adequate remedy and that the balance of convenience would favour the granting of an injunction. Non doctors will not be able to rely on such evidence, although employees who specialise in narrow areas of expertise may well be able plausibly to argue that it will be impossible to gain comparable employment if dismissed for serious misconduct from their current position. But there are authoritative dicta that suggest that many employees embroiled in an unfair disciplinary process could plausibly contend that damages would not be an adequate remedy and that the balance of convenience favoured the granting an injunction. Thus Lord Hoffmann, in a famous passage in Johnson v Unisys Ltd [2001] IRLR 278 observed that:

• “…over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality.”

Damage to self-esteem and one’s sense of identity is not a matter that is readily compensated by damages. Nor are lingering suspicions and psychological damage: see this observation of Elias LJ said inCrawford v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402 CA in the context of suspensions:

• “Suspension is often said to be in the employee’s best interests, but many employees would question that and would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least because the suspension appears to add credence to them.”

The fact that the function of internal disciplinary procedures are fundamentally the same, whether they are contractual and detailed or non-contractual and simple was emphasised by the same eminent judge in Christou v Londong Borough of Haringey [2013] EWCA Civ 178:

• In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the 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. It is true that sometimes (but by no means always) the procedures will have been contractually agreed, but that does not in my judgment alter their basic function or purpose. The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide a panoply of safeguards of a kind typically found in adjudicative bodies, as is sometimes the case in the public sector in particular, that does not alter their basic function.”

The availability of injunctive relief in internal disciplinary procedures is now well established: it is surely only a matter of time before it is more frequently sought outside the medical profession.