Disciplinary of Medical Professionals: Alternative Remedies to Unfair Dismissal
17th February 2014
Firstly, what forms part of the contract of employment for a medical professional? Doctors generally will have:
1. Their written contracts of employment, and;
2. The policies and procedures of the Trust by which they are employed, and;
3. The MHPS Framework.
Specialist Registrars may also have their Training Contract with a local Medical Deanery which also provides a further source of contractual terms. However the purpose of this article focuses purely on the relationship between a doctor and their employer.
The Maintaining High Professional Standards (MHPS) Framework document is the document which contains the processes for dealing with medical practitioners within the NHS who are alleged to carry out an act of misconduct or where there are concerns over their fitness to practice.
It is deemed to be a contractual document and contain contractual terms. It follows that in order for an Employer to successfully discipline or dismiss a medical practitioner then it MUST follow the rules set out therein.
The document contains details as to who should be appointed to carry out the various stages of the process, what the functions and limits are to each role, what the Medical Professional’s rights are, and the manner in which any investigation and subsequent hearing should be conducted, sanctions that may be imposed and the aggravating and mitigating factors that may be considered.
The Limitation of Unfair Dismissal
Unlike in some employment where policies and procedures fall short of the protection of a contractual term, failure to follow the MHPS, or any part of it therefore, means a breach of contract.
In normal employment law cases such a breach is likely to give rise to a claim for breach of contract, wrongful dismissal and/or unfair dismissal, and therefore a claim for compensation.
However, for medical practitioners damages for such may be insufficient. The Recent case of Edwards confirmed that there is no general principle of damages in a breach of contract claim before the Courts which can extend beyond the value of the notice period. Further, even if successful in an Employment Tribunal, the Claimant’s award for unfair dismissal is capped at £74,200 or 12 months gross wages (whichever is the lower), or £25,000 for breach of contract. However, this may not be satisfactory for a medical professional as:
- such sums may genuinely not compensate for the loss that they have or will suffer; loss may extend beyond the capped sum, and in cases of misconduct may include the effective destruction of a career.
- The loss of NHS work may have an adverse knock-on effect to any private work carried out by the individual.
- The loss of their role or having sanctions imposed may also lead to repercussions from the professional’s regulatory body launching its own investigation and action.
It should also be noted that the “Range of Reasonable Responses” and “Burchell” tests before the Employment Tribunal may make it difficult for the Medical Professional to succeed in their claim.
The disparity between the sanctions and their possible remedies is likely to be one of the reasons for the MHPS’s elevation to the status of a contractual document.
Alternatives to Compensation Claims
In light of the aforementioned disparity, medical practitioners may seek alternative remedies to those normally associated with employment law claims. Whilst these may be potentially be open for all employees, the cost and outcome mean that they are not usually followed outside of professional circles.
The most potent weapon in the Medical Professional’s armoury is the injunction. This is the ability to apply to the Court to seek an order either to prohibit an Employer from taking certain actions, or on occasion to compel it to take an action. At the same time a claimant may also seek a declaration by the Court that there has been a breach of contract or that the Employer has acted Ultra Vires and beyond the realms of its normal powers.
However to be successful in any injunction application, a Claimant will have to show that:
a. unnecessary or prolonged delay by the Clamant in making the application
b. acquiescence to the treatment
c. inequitable conduct by the Claimant.
A further advantage to dealing with the matter in this way is that if the Claimant wins then the prospects of recovering their costs are greater. However, equally, if they lose there is a greater risk that a) they will be ordered to pay their employer’s costs, and b) if an interim injunction has been granted then there may be damages payable to the employer under any cross undertaking.
In the event that you are either:
a) an employer of medical professionals and are having problems with an employee, or;
b) you are a medical professional who is being subjected to disciplinary or capability proceedings and are concerned that the correct process is not being followed,
you are advised to take professional legal advice at your earliest possible convenience.