Employer restrained from starting capability procedure

In Mezey v South West London and St George’s Mental Health NHS Trust, the Court of Appeal has confirmed, for the first time, that an employee may use an injunction to stop an employer from pursuing a disciplinary procedure.  Julian Hoskins examines the detail and sets out the impact of this decision.

The background

One of the main mechanisms by which the relationship between an employer and employee is regulated is the contract of employment between the parties.  This is often complemented by polices and procedures which may, or may not, form part of the employment contract.

There are several remedies available for breach of contract, one of which is an injunction to prevent a party from taking action which would amount to a breach of that contract.  In Mezey v South West London and St George’s Mental Health NHS Trust, the Court of Appeal considered whether an NHS Trust could be subject to an injunction to prevent a capability procedure from being invoked, where that procedure formed part of an employee’s contract. 

The facts

This case arose from tragic circumstances. Dr Mezey was employed by the South West London and St George's Mental Health Trust (‘the Trust’) as a consultant forensic psychiatrist.  In September 2004, one of her patients, John Barrett, absconded after Dr Mezey had authorised an hour’s unsupervised access to a garden, without first assessing Mr Barrett in person.  Mr Barrett escaped from the garden and subsequently murdered a man in Richmond Park.

Consequently, the Trust set up the ‘Francis inquiry’ into what, if anything, had gone wrong so as to lead to this incident.  The inquiry was critical of Dr Mezey's conduct and role in the care of Mr Barrett: it felt that she had made an error of judgment in authorising unescorted access to the garden without first seeing Mr Barrett; but it did not find that this was a mistake caused by incompetence.  Rather, the enquiry endorsed Dr Mezey’s general competence and clinical ability, and said that another clinician could have come to the same (albeit wrong) decision.  The Trust wanted to use this finding as a reason for starting capability proceedings against Dr Mezey.

Whilst the Francis inquiry was set up under the contractual procedure, Disciplinary Procedures for Hospital Staff, by the time the Trust sought to engage a disciplinary process against Dr Mezey, the relevant contractual procedure was covered by Maintaining High Professional Standards in the Modern NHS (‘MHPS’).  Under MHPS:

• the decision to investigate should only be taken after consultation with the National Clinical Assessment Authority (NCAA); and
• the capability procedure should only be invoked if the practitioner has been shown to have lacked knowledge or ability or to have rendered consistently poor performance; and
• a range of sanctions against an employee are available, once a decision has been made.

Despite the outcome of the Francis inquiry, and despite the lack of consultation with the NCAA, the Trust insisted on starting a formal capability procedure under MHPS.  Dr Mezey applied to the High Court for an injunction to stop the Trust from continuing with this procedure.

The decision

The High Court granted Dr Mezey’s application for an injunction, on the basis that none of the sanctions available under MHPS were relevant to Dr Mezey, as the Francis Enquiry had endorsed her competence.

The Trust appealed, but the Court of Appeal upheld the High Court’s decision and found that:

• MHPS is a contractual document and formed part of Dr Mezey’s contract of employment;
• the Francis Report (which was akin to the NCAA report normally required under MHPS) had endorsed Dr Mezey’s competence; therefore
• the MHPS procedure had not been triggered;
• to enter into that procedure would amount to a breach of contract, from which the Trust should be restrained; and
• the NCAA had to be consulted before the MHPS capability procedure could start, and this had not happened.

What does this mean for me?

This is a salient reminder that non contractual policies and procedures give employers maximum flexibility and limit the remedies available to employees. Wherever possible, it is usually advisable to explicitly state that polices and procedures are non-contractual. 

Where employers do have contractual policies and procedures in place, this case confirms that an employee may use an injunction to stop a contractual procedure from being invoked.

Although the facts of this case concerned an NHS employer, the principles set out by the Court of Appeal will apply across the board: if an employer attempts to act in breach of a contractual procedure, an employee may take out an injunction to stop them proceeding. 

As public sector employers are more likely to have in place contractual procedures, this decision is likely to impact more on the public than the private sector.  
Following this decision, it is now more important than ever that employers comply with the precise steps required by a contractual procedure; otherwise an employee may have the option of stopping the procedure from continuing at all.