Healthcare - July 2010
Edwards v Chesterfield Royal Hospital NHS Foundation Trust
It has been well established for a number of
years that in a claim by an employee alleging a breach of contract
in the operation of a contractual disciplinary procedure, there is
an effective limit to the scale of damages awardable; they could
not exceed the sum of the salary and benefits etc that would have
been payable for the duration of the disciplinary process, but for
the breach of contact, and the duration of the employee’s
contractual notice period. As an employer may lawfully
terminate a contract of employment that is in a way which is
compliant with the contract (including the right to notice), this
approach was regarded as consistent with the purpose of damages for
breach of contract - to put the injured party in the position he or
she would have been if the breach of contract had not occurred.
Mr Edwards, a consultant surgeon with the
hospital, was dismissed for gross professional and personal
misconduct. Since his dismissal he had been unable to obtain
permanent employment in the NHS.
Mr Edwards claimed damages for breach of
contract, arguing that:
- The conduct of the disciplinary hearing was
defective and in breach of the terms of the disciplinary procedure
because it failed to meet a number of requirements contained in the
Local Negotiating Committee procedure;
- The application of the disciplinary procedure
was a term of his contract of employment;
- The defects led to the finding of
misconduct;
- The misconduct finding caused his inability
to find permanent NHS employment; and
- The NHS Trust’s breach of contract had caused
him career-long losses in excess of £4 million.
In the first instance Mr Edward’s extended
claim was struck out and he appealed to the High Court and then to
the Court of Appeal which decided that he was entitled to pursue
his claim for lost income suffered as a result of disciplinary
proceedings which were conducted in breach of the terms of his
contract of employment.
It is still for Mr Edwards to prove his case
and it is understood that the hospital intends to appeal the
decision. The case is therefore of obvious importance for NHS
employers (as well as other employers who operate contractual
disciplinary procedures) who would be well advised to ensure that
their disciplinary cases are defect-free – just in case.
Mike Berriman,
Partner
Weightmans LLP