In a decision handed down on 19 July 2012 in the case of Sian Kerslake v North West London Hopsitals NHS ((he Trust0 the High Court held that a Trust could proceed with an internal hearing to consider if a consultant should be dismissed for “some other substantial reason” (SOSR) where it was alleged that there had been a breakdown in the working relationship.
Miss Kerslake has been employed by the North West London Hospitals NHS Trust as a Consultant Obstetrician and Gynaecologist since 1998.
In 2007 concerns were raised about Miss Kerslake’s clinical competence, as a result of which she was placed on restricted duties whilest an investigation was undertaken into the concerns that had been raised. The internal investigation concluded that the concerns did not arise from any lack of competence on the part of Miss Kerslake, but reflected interpersonal difficulties. Mediation was undertaken by a trained mediator between late 2007 to mid- 2008. This was not successful.
In February 2009 Miss Kerslake made a formal complaint against Clinical and Medical Directors. An independent practitioner in Obstetrics and Gynaecology, Professor Walker, was asked to investigate Miss Kerslake’s grievance.
Professor Walker did not uphold Miss Kerslake’s grievances but did, however, find that Miss Kerslake was not fit to practise as an independent Consultant in Obstetrics and Gynaecology.
On reading Professor Walker’s report and findings, the Trust’s new Medical Director formally excluded Miss Kerslake whilst NCAS carried out an assessment into her practise. NCAS found that Miss Kerslake was performing at a satisfactory level for a Consultant Gynaecologist. NCAS also found, however, that Miss Kerslake had difficulties in her relationship with her colleagues and she herself recognised that reintegration into the Trust would be difficult.
A formal internal investigation was undertaken which found that: “a significant body of clinical and managerial opinion had lost trust and confidence in Miss Kerslake”. Miss Kerslake was informally excluded from the Trust and a formal internal hearing was arranged to establish if Miss Kerslake’s employment could be terminated for SOSR, on the basis that there had been an irretrievable breakdown in trust and confidence between the Trust and her. Miss Kerslake’s lawyers lodged legal proceedings in the High Court to prevent the hearing from proceeding on the basis that the issues related to conduct and/or capability and therefore the Maintaining High Professional Standards Framework in the Modern HHS Framework (MHPS) applied.
The High Court found that the Trust had acted in good faith at all times. The Judge noted that there was no suggestion that Miss Kerslake’s conduct or capability was cause for concern, but NCAS had raised an issue concerning working relationships which it was appropriate for the Trust to address.
The High Court held that:
“the Trust’s proper concern is to enquire into that, to deal with the extent of the breakdown, to see if it is remediable, and to ensure that the department is not adversely affected by it in providing its service to the public. The obligation of the Trust as employers must be to examine the extent to which it may be possible to resolve the differences which have led to the breakdown, and, if that is not possible, to make a decision as to how to bring the matter to a conclusion in the best possible way”.
Accordingly, the Trust could proceed to an internal hearing.
The High Court further found that Miss Kerslake’s exclusion from work since January 2012 was a breach of contract by reason that the Trust had failed to observe certain procedural requirements set out in MHPS.