The Court of Appeal has held that allegations of misconduct against a doctor, including rudeness and insubordination, were correctly categorised by the NHS Foundation Trust employer as ‘misconduct’, rather than ‘professional misconduct’. This meant that the disciplinary panel did not have to include an independent medically qualified person under the Maintaining High Professional Standards in the Modern NHS (MHPS) procedures. The disciplinary panel had been correctly constituted, and the Court upheld the employment tribunal’s decision that the doctor had been fairly dismissed.

Legal background

When an NHS employer is addressing concerns with a doctor (whether in relation to their conduct, capability, health etc.) it is vital that the allegations are correctly categorised as either ‘misconduct’ or ‘professional misconduct’. Allegations of ‘misconduct’ can be heard by a disciplinary panel constituted in accordance with the NHS employer’s own procedures which apply to all staff, whereas MHPS requires that allegations of ‘professional misconduct’ are heard by a panel, which includes an independent medically qualified person. In addition, in ‘professional misconduct’ cases, the case investigator must obtain ‘appropriate independent professional advice’.

Factual background

Ms Idu, a consultant in emergency surgery, was dismissed by East Suffolk and North Essex NHS Foundation Trust for misconduct, which can be summarised as:

  • Refusal to accept that she was not, and failing to obey a reasonable management instruction to stop referring to herself/holding herself out as the clinical lead for emergency surgery
  • Refusal to engage appropriately with management in relation to fulfilling her job plan commitments or to negotiate a revised job plan
  • Refusal to follow a reasonable management instruction to provide ward cover on the day of a junior doctors' strike (or to provide an appropriate explanation for this refusal)
  • Refusal to provide an explanation for listing patients for surgery who had been waiting less than 18 weeks, rather than those who have breached (or may be about to breach) the 18 week target
  • The tone and style of her written and verbal communication with colleagues and managers was inappropriate, rude and uncivil. On occasions it was aggressive, amounting to bullying and harassment, despite being required to desist from communicating in such a way
  • She had become unmanageable as a consequence of, and refusal to address, her behaviour
  • Refusal to follow a reasonable management request to leave a surgical business meeting when her attitude and behaviour towards colleagues was unacceptable

The Trust categorised these allegations as ‘misconduct’ (rather than ‘professional misconduct’) and therefore the disciplinary panel did not include an independent medically qualified person. An internal appeal was unsuccessful and Ms Idu’s summary dismissal was upheld.

Ms Idu subsequently brought employment tribunal proceedings claiming whistleblowing detriments, unlawful sex and race discrimination and ordinary and automatically unfair dismissal, together with a claim for wrongful dismissal. These claims were dismissed in their entirety by the employment tribunal. Ms Idu appealed to the EAT on the basis that the allegations she had faced amounted to ‘professional misconduct’, and under the MHPS procedures, the disciplinary panel ought to have included an independent medically qualified person. The EAT rejected her appeal and upheld the tribunal’s decision. Ms Idu then appealed to the Court of Appeal.

Court of Appeal held

The Court dismissed Ms Idu’s appeal, upholding the EAT’s analysis that none of the allegations concerned the way in which she had exercised her medical skills and so none of them raised questions of ‘professional misconduct’ (as opposed to ordinary ‘misconduct’). The Court held that, the fact that the conduct in question may be associated with a doctor’s work does not necessarily mean that it arises from the exercise of medical skills. In respect of the allegations Ms Idu faced, the fact she was a doctor was no more than the context in which the allegations arose. The underlying issue, which connected the allegations, concerned Ms Idu’s relationship with the Trust’s management and with colleagues and staff. Only one allegation faced by Ms Idu had the potential to stray into ‘professional misconduct’ – being the allegation relating to listing patients for surgery who had waited less than the 18 week target – but the EAT had rightfully concluded that the real issue was Ms Idu’s refusal to provide an explanation rather than her exercise of medical skills.

Whilst this case was brought in the employment tribunal, very often this type of challenge would have arisen prior to an internal hearing took place, possibly by an injunction application in the High Court. In some cases, the prospect of such lengthy and costly challenges may lead employing trusts to take a broad view and categorise a borderline case as ‘professional misconduct’, and apply the associated additional procedural checks and balances, to minimise the risk of such satellite litigation.