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Contractual disciplinary procedures
If a disciplinary procedure is contractual, reps are in a strong position to insist the employer works through all its stages and follows it to the letter. Failure to work through all the stages is likely to be a breach of contract and may entitle the employee to an injunction — an order preventing the employer carrying out a dismissal until the disciplinary procedure has been completed (Mezey v South West London & St George’s Mental Health NHS Trust [2010] EWCA Civ 293). Contractual disciplinary procedures are most likely in large public sector organisations, such as NHS Trusts.
Unless the wording of the disciplinary procedure states expressly that it is contractual, its contractual status can be difficult to establish. Note that even if one part of a procedure is contractual, other parts may not be. A recent case gives some useful guidance:
Dr Hussain, an NHS paediatrician, was suspended following an allegation that she had deliberately altered case records. The disciplinary procedure allowed suspension, but it also set down detailed rules about how the suspension was to be carried out.
In particular, the suspension was supposed to be time-limited and kept under review, and suspended staff were normally to be allowed to keep in touch with colleagues and to keep up with professional training. Dr Hussain had been banned from the workplace and from contacting colleagues. Her suspension lasted indefinitely for many months.
She applied for a High Court injunction to prevent the Trust dismissing her in breach of its own procedure. In particular, she argued that her suspension exceeded the disciplinary procedure and was a breach of contract. The Court agreed. The Trust accepted that its right to suspend her was contractual, so it followed that the disciplinary rules limiting the scope of that suspension were also contractual.
The Court gave new guidance on when a term is likely to have contractual status:
In any collective agreement, some provisions may have contractual status, while others may be “aspirational”, or amount only to “guidance”. There is no one test as to whether a term is contractual, but relevant factors include:
• its importance to the overall contractual working relationship;
• How detailed it is. The more detail there is in a procedural rule, the less likely it is to have contractual status, as Courts do not want to “become involved in the micro-management of conduct hearings”;
• How clear and certain it is. A vague term is unlikely to have contractual status;
• Its context within the overall agreement. A provision that sits among other obviously contractual provisions is more likely to have contractual status;
• Whether the term is “workable” or makes “business sense”
Language choice is important but not conclusive. Just because a clause uses words like “should” rather than “must”, this does not mean the parties did not intend the clause to be contractual.
Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670