The High Court issues guidance as to when contractual provisions are valid

Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB)

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Dr Mahein Hussain a consultant paediatrician claimed she was excluded from work and was subject to disciplinary procedures in breach of the contract of employment. She also argued that her rights under article 6 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention") were contravened. The article 6 argument was later withdrawn by agreement.

Mr Justice Andrew Smith ruled that the Trust was within its rights to place restrictions on Dr Hussain under its procedures but had been too harsh and was therefore in breach of its own procedures and the contract of employment.

The Trust would only have been entitled to proceed to a conduct hearing against Dr Hussain after having amended the original charges.

The High Court considered the factors needing to be addressed when deciding whether a particular provision (here with regard to disciplinary policy) has contractual effect (para 168):

1. the importance of the provision to the contractual working relationship and its relationship to the contractual arrangements between the parties; Provisions important to implementing the agreement about exclusion and about conduct hearings will be contractual, and the more important the provision to the structure of the procedures, the more likely it contractual (Auld LJ - Keeley v Fosroc International Ltd [2006] IRLR 961).
2. the level of detail prescribed by the provision; the courts should not "become involved in the micro-management of conduct hearings" ( Court of Appeal Kulkarni v Milton Keynes Hospital NHS Trust, [2008] IRLR 949 - para 25 ).
3. the certainty of what the provision requires; A vague provision will not have contractual status.
4. the context of the provision; if it is included among other contractual provisions it is more likely to have to have contractual status.
5. whether the provision was workable (Malone v British Airways, [2010] EWCA Civ 1225 - para 62).

The judge believed that detailed provisions about investigations "and about other matters" were intended as advice or guidance to investigators and others and "should (not) be enforced through the legal process as breaches of contract, with the court "micro-managing" these arrangements."

• Concerning the exclusion the Trust was ruled in breach of Dr Hussain's contract of employment.
• Had the Trust brought the 'March charges' to a conduct hearing this would also have been a breach of contract.
• Dr Hussain's other complaints were rejected.

© 2011 Workrep