Final Written Warning Lands NHS Trust in Procedural Tangle

A recent case (McMillan v Airedale NHS Foundation Trust) serves as a reminder that employers who fail to adhere to disciplinary procedures that form part of an employee’s contract of employment lay themselves open to a claim for damages for breach of contract.



A hospital consultant was given a final written warning after a finding of misconduct was made against her. She hotly disputed the finding and there followed a procedural tangle which took more than three years and consideration by four judges to finally sort out.



The consultant was accused of giving inconsistent accounts relating to an incident in which a woman suffered complications in the course of successfully giving birth by Caesarean section. An internal disciplinary panel found the consultant guilty of misconduct and issued her with the final written warning.



She countered by making numerous criticisms of that decision, and the panel which considered her appeal decided to treat the matter as a complete rehearing. The consultant was informed that, if the appeal went against her, the panel would have complete discretion to impose a fresh sanction, which might include the termination of her employment.



The misconduct finding was upheld and the appeal panel adjourned to consider the appropriate sanction. However, in the interim, the consultant purported to withdraw her appeal and launched legal proceedings. A judge subsequently granted her an injunction, which forbade the appeal panel from reconvening.



In dismissing a challenge to that order by the consultant’s NHS Trust employer, the Court of Appeal found that, on a correct reading of her employment contract, the appeal panel had no power to increase her sanction beyond that of a final written warning. Any more severe sanction would have amounted to a breach of her employment contract and the injunction had thus been rightly granted.