England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/12/2007

Stanley Burnton J :

Introduction

1. Until the events that are the subject of these proceedings, the Claimant, Dr Otto Chan, was a consultant radiologist employed by the Defendant NHS Trust, to which I shall refer as "the Trust". Following the report of an independent Inquiry Panel and an internal disciplinary procedure, on 7 June 2006 he was summarily dismissed, on the ground that he had been guilty of gross misconduct in his employment. He sought to appeal to the Secretary of State for Health under paragraph 190 of the Terms and Conditions for Hospital and Medical and Dental Staff, contained in circular HC(90)9, which had been incorporated in his contract of employment when he joined the Trust. By letter dated 24 July 2006 the Department (by its solicitor) informed Dr Chan that they considered that he had no right to such an appeal, for two reasons. First, they stated that he had agreed to be employed under the new national model contract for consultants, which did not provide for any such appeal. Secondly, they stated that paragraph 190 had no application to summary dismissal. Those reasons reflect the position of the Trust.
2. Dr Chan denies that the procedure followed by the Trust permitted it to dismiss him summarily for gross misconduct. He denies that he agreed to be employed under the new model contract. In these proceedings, he seeks against the Trust:

(a) A declaration that his contract of employment did at the date of his purported summary dismissal include a right of appeal under paragraph 190.

(b) A declaration that his purported dismissal was a nullity, and that his contract of employment is therefore still subsisting.

(c) Alternatively, a declaration that his dismissal was a repudiatory breach of contract on the part of the Trust which he has not accepted, so that his contract of employment still subsists.

3. The Trust denies that the Claimant is entitled to this or any relief. It contends that it was entitled to and did properly dismiss him by reason of his gross misconduct; and that he had accepted the new national model contract, which did not confer any paragraph 190 right of appeal.
4. The hearing of this case occupied 6 days. Most of the time was taken in addressing the issue raised late by the Claimant, in September 2007, when for the first time he disputed that he had agreed to the new national model contract. With the agreement of the Trust, permission to re-amend the Particulars of Claim was given at the beginning of the trial, and the Trust given permission to re-amend consequentially. It seems to me that the trial suffered from the fact that this issue had been raised late. The consequence was that the Trust in turn had to plead late its case that he had accepted the new model contract and agreed his job plan. Perhaps understandably in these circumstances, it did so in general terms (especially in relation to the allegation that he had agreed his job plan) that might have been particularised. It is no tribute to the Trust's documentation of its employment contracts that this issue was open to dispute and had to be resolved, but I accept the evidence of Dr Gutteridge, the Trust's Medical Director, that as a result of the late change in Dr Chan's case it was difficult for it to retrieve a complete documentary record. It is also no tribute to our employment law that no less than 41 judicial authorities were placed before me.
5. While I am grateful to the parties' legal representatives for having copied so much material for me, I must also say that integrated chronological files of documents would have speeded and eased the progress of the trial. As will be seen, I have referred to very few of these authorities; but I have kept them in mind. The decision in this case depends on its very particular facts. Had I discussed the many authorities before me, an overlong judgment would have been lengthened, and more importantly the delay before this judgment was given, which I already regret, would have been considerably prolonged.

The issues

6. In his opening, Mr Hendy summarised the principal issues before me as follows:

(a) Was Dr Chan's summary dismissal for gross misconduct procedurally in accordance with his contract of employment or a breach of that contract?

(b) If it was a breach of his contract, was he contractually entitled, as between himself and the Trust, to a paragraph 190 appeal to the Secretary of State?

(c) If he had such a right, should the declaratory relief be granted?

7. Bound up in (a) are the following issues:

(d) What was Dr Chan's contract of employment at the date of his dismissal?

(e) What were the disciplinary procedures applicable to his dismissal?

(f) Were those procedures followed, and if so was that done fairly? In particular, did he have fair notice that the Trust was considering his summary dismissal for gross misconduct, and was he given a fair opportunity to address that possibility?

(g) If the disciplinary procedure was unfair, was it as a result of a breach of contract and should it lead to the consequences for which Dr Chan contends?

8. Mr Moon did not dissent from this summary, save that he submitted that issue (a) is substantive rather than procedural, i.e., did Dr Chan's conduct amount to gross misconduct entitling the Trust to dismiss him summarily?
9. It goes without saying that Mr Hendy did not concede that Dr Chan's conduct had amounted to gross misconduct.

The facts

Dr Chan's contract of employment: documentary and undisputed evidence

10. Dr Chan was appointed as a Consultant in Radiology of the Royal London Trust in December 1992. His appointment began on 1 January 1993. The Royal London Trust subsequently merged with the St Bartholomew's Hospital Trust to form the Defendant Trust, which inherited the rights and the liabilities of its predecessor Trusts.
11. Dr Chan's appointment was confirmed in a letter from the Trust dated 1 December 1992 that was countersigned by him on 12 December 1992. So far as relevant to the present issues, it provided:

"The terms and conditions of employment offered are equivalent to those set out in the Terms and Conditions of Service of Hospital Medical and Dental Staff (England and Wales) and the General Whitley Council Conditions of Service with the exception of paragraph 32, as amended from time to time. Copies of these may be seen at the Medical Personnel Office.

…

The employment is subject to three months' notice on either side, but is subject to the provision equivalent to those set out in paragraphs 190 to 198 of the Terms and Conditions of Service of Hospital Medical and Dental Staff.

…

In matters of personal conduct you will be subject to the Trust's procedures on disciplinary action and dismissal. Procedures for appeal against disciplinary action or dismissal are equivalent to those set out in section 40 of the General Whitley Council Handbook."

12. Section 40 of the General Whitley Council's Handbook preserved the right of doctors to appeal to the Secretary of State under paragraph 190 of the Terms and Conditions of Service for Hospital Medical and Dental Staff. It is common ground that it did not of itself confer that right.
13. Circular HC(90)9 set out changes to the previous paragraph 190 of those Terms and Conditions. NHS authorities were asked to introduce the changes to the contracts of employment of their relevant staff. As changed, Paragraph 190 was, so far as material, as follows:

"… a consultant who considers that his appointment is being unfairly terminated may appeal to the Secretary of State against the termination by sending to him a notice of appeal at any time during the period of notice of termination of his appointment."

14. In December 2002, the Trust adopted a Disciplinary Policy that included the following statement:

"Matters relating to the professional conduct or competence of Medical and Dental staff in the non training grades employed by the Trust on or after 1 April 1993 will be dealt with in accordance with the Trust's Disciplinary Procedure for Non Training Grade Medical and Dental staff. Cases of professional conduct or competence of non training grades of Medical and Dental Staff employed by the Trust before 1 April 1993 will be dealt with in accordance with the Disciplinary Procedure set out in HC(90)9, or its replacement. In cases of disability, including drugs or alcohol addiction of medical staff, advice should be sought from the Medical Director, the Director of Occupational Health or the Director of Human Resources, the interests of patients being paramount."

Non training grades were those of staff, such as Dr Chan, who were not in training.

15. On 17 July 2003, the Department of Health, the British Medical Association and the NHS Confederation announced that they had reached agreement on a proposed new standard consultant contract, to be adopted nationally. The Trust informed its consultants, including Dr Chan, of the announcement and of consequential matters by letter dated 15 August 2003. Consultants would in general receive more pay under the new contract than under their existing contracts, and the Trust's letter contained a timetable for consultants to indicate their wish to take up the new contract so as to entitle them not only to increased pay in the future but also backdated increases. The timetable was as follows:

If you have indicated your wish to take up the new contract by 30 September and you then agree a job plan with your clinical director (or other clinical manager) by 31 December, or have made all reasonable efforts to do so by that date, pay increases will be backdated to 1 April

If you have indicated your wish to take up the new contract between 1 October 2003 and 31 March 2004 and you then agree to a job plan with your clinical director (or other clinical manager) within three months, or have made all reasonable efforts to do so, pay increases will be backdated by three months from the date you gave the commitments

if you have indicated your wish to take up the new contract on or after 1 April 2004, backdating of pay increases will not apply.

…

Transfer to the new contract remains voluntary; consultants may retain their existing contract and terms and conditions of service if they wish.

16. The letter summarised "key information" about the new contract. Under the heading "Financial implications", it stated:

"The precise financial implications of the contract will depend on how many programmed activities you have in your agreed new job plan, and the frequency and nature of on-call duties. The general expectation is that, over the course of a consultant career, consultants will earn an average 15 per cent more than they do now, before taking into account annual pay uplifts. … The contract introduces pay supplements to recognise the onerous nature of being on-call (on-call availability supplements) as well as greater recognition for the actual work done as a result of being on-call."

17. The letter did not refer to any change in disciplinary procedures. Under the heading "Next steps" it stated:

"We will be working to ensure that there are early opportunities for you to discuss the implications of the new contract for you individually, for your directorate, and for the organisation. A series of open meetings, chaired by the Medical Director, is planned for the first two weeks of September. Information will also be posted in the 'Consultant Information' pages of the trust intranet, where there will also be a facility for submitting questions about the new contract. FAQs are attached to this letter as Annex B. You may also email or telephone Douglas Bilton, Executive Assistant to the Medical Director …

Attached as Annex C is a form for return to your clinical director, on which you may indicate your wish to transfer to the new contract. A copy should also be sent to Douglas Bilton, who is collecting data centrally for the purpose of planning the transfer process according to the timetable set out by the Department of Health and the BMA."

18. A programmed activity is a measure of programmed work of 4 hours' duration, on the basis of which his pay is calculated. Thus, a consultant employed for 10 programmed activities (abbreviated to PAs) would be required to work 40 hours a week, and would be paid accordingly. A consultant's job plan sets out in summary form the work he is employed to do. It would normally be formulated by either the consultant or the Trust, and accepted or agreed by the other, or negotiated between them. However, a degree of co-ordination with other consultants in the same speciality is desirable, to ensure that there is consultant cover whenever it might be required. A consultant's actual work might be longer or, conceivably, shorter than that shown on his job plan, but the basis of his payment would be the work shown in his agreed job plan.
19. Annex A to the letter of 15 August 2003 was headed "Heads of Agreement 17^th July 2003". Paragraphs 2 and 10 were as follows:

"Job planning

2. Job planning under the new contract will be based on a partnership approach. The clinical manager will prepare a draft job plan, which will then be discussed and agreement sought. Such job plans will list all the NHS duties of the consultant, the number of programmed activities for which the consultant is contracted and paid, a schedule for carrying out programmed activities, the consultant's objectives and agreed supporting resources. The consultant must fulfil their duties and make best endeavours to meet their objectives. If it is not possible to reach agreement on the job plan, the consultant may invoke the process of mediation and, if necessary, appeal set out in paragraphs 10-11 below.

…

Appeals

10. Wherever possible, disagreements over job planning or pay progression should be resolved by referral to the medical director for mediation. If matters are not resolved in this way, there will be access to a fair and balanced appeal process.

11. Under this process:

The Panel will have three members:

The chairman nominated by the employing organisation

A representative nominated by the consultant

A third member chosen from a list of individuals approved by the Strategic Health Authority and the BMA

Legal representatives acting in a professional capacity will not be involved in the process, but the consultant may be accompanied by a friend or adviser during the process

The Panel will issue a recommendation to the
Trust Board, which will normally be accepted. The Trust Board retains the right to make the final decision."

20. Paragraph 11 summarised the appeal procedure. Paragraph 26 stated:

"There has been progress in agreeing the key elements of the Department's proposals for new disciplinary procedures to replace the existing local and national procedures (HC(90)9). This will include the removal of the paragraph 190 procedures. There will now be joint discussions between the parties to finalise the details for the new disciplinary procedures."

The italics are mine.

21. Annex C to the letter was a form on which the consultant "may indicate your wish to transfer to the new contract". Dr Chan signed the form on 8 September 2003 and returned it as requested. It stated:

"This is to record that I wish to take up the new consultant contract, subject to terms and conditions of service being agreed, …."

22. During August and September 2003, Dr Chan completed diaries of his working hours on forms provided by the Trust, with a view to the agreement of his contractual job plan. They covered the period from the week beginning 18 August to the end of the week beginning 15 September 2003, and showed that he worked between 45½ and 55 hours in a week. However, not all the time shown on the diaries would translate into PAs. There was, for example, an issue between consultants and the Trust as to whether work done at home should be included in PAs. The consultants understandably wanted reading done for continuing practice development to be rewarded; the Trust did not. Emergency call-outs would not be rewarded as PAs.
23. The standard terms of consultants' contracts were finally formulated in about October 2003. The complete contractual documentation was substantial, amounting with the appendices to the terms and conditions to nearly 70 pages. Section 3 of the terms and conditions was as follows:

"3. General Mutual Obligations

Whilst it is necessary to set out formal employment arrangements in this contract, we also recognise that you are a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgments and decisions. It is essential therefore that you and we work in a spirit of mutual trust and confidence. You and we agree to the following mutual obligations in order to achieve the best for patients and to ensure the efficient running of this service:

To co-operate with each other;

To maintain goodwill;

To carry out our respective obligations in agreeing and operating a Job Plan;

To carry out our respective obligations in accordance with the appraisal arrangements;

To carry out our respective obligations in devising, reviewing, revising and following the organisation's policies, objectives, rules, working practices and protocols."

24. The contract referred to a job plan that had been or would be agreed and reviewed from time to time. For example, section 5.1 stated:

"Except in emergencies or where otherwise agreed with your manager, you are responsible for fulfilling the duties and responsibilities and undertaking the Programmed Activities set out in your Job Plan, as reviewed from time to time in line with the provisions in section 6 below."

25. The job plan was the subject of section 6:

"You and your clinical manager have agreed a prospective Job Plan that sets out your main duties and responsibilities, a schedule for carrying out your Programmed Activates, your managerial responsibilities, your accountability arrangements, your objectives and supporting resources.

You and your clinical manager will review the Job Plan annually in line with the provision in Schedule 3 of the Terms and Conditions. Either may propose amendment of the Job Plan. You will help ensure through participating in Job Plan reviews that your Job Plan meets the criteria set out in the Terms and Conditions and that it contributes to the efficient and effective use of NHS resources."

26. On 31 October 2003, Dr Chan signed and returned a standard form of letter for signature by consultants. It was addressed to the Chief Executive of the Trust, and stated:

"2003 consultant contract

I am writing to give a formal commitment to move from my current contract of employment to the new consultant contract 2003 agreed between the BMA's Central Consultants and Specialists Committee, the Department of Health and the NHS Confederation.

I understand that this commitment is not legally binding but it is conditional upon us being able to agree an appropriate job plan. Whilst I am making this commitment in the full expectation of taking up the new contract, if we are unable to reach agreement over a job plan, I reserve the right to remain on my current contract.

As this commitment to the contract is given by 31 October 2003, I understand that I will be eligible to receive the pay backdated to 1 April 2003 or to a later date of my choice. I understand the date agreed would become the date at which seniority is calculated and this shall also form my subsequent eligibility date for future pay thresholds. I understand that the amount of backdated pay will be determined by the job plan we agree, taking into account the number of Programmed Activities, any on-call availability supplements and the related guidance agreed between the BMA and the Department of Health.

I am aware that receipt of backdated pay is conditional upon us agreeing a job plan within 3 months of the date of this commitment. However, if the job plan is not agreed within that time scale for reasons beyond my control, I will not forfeit the right to backdated pay."

27. On 29 December 2003, the Department of Health issued circular HSC 2003/012 entitled "Maintaining High Professional Standards in the Modern NHS". It stated that the Department had been working with the BMA and the British Dental Association to develop a national framework to replace, among other guidance:

"HC(90)9 Disciplinary Procedures … including the right of certain consultants to appeal to the Secretary of State under 'Paragraph 190' of NHS Terms and Conditions of Service."

28. HSC 2003/012 stated that the Department would publish a new national disciplinary framework. NHS bodies were required to comply with the new framework, and NHS Trusts were required to report to Strategic Health Authorities what actions they had taken to put in place the new arrangements by 1 April 2004.
29. On 3 February 2004, Dr Chan circulated to his fellow radiologists and consultant radiologists at the Royal London Hospital a letter about the proposed job plans. He wrote, so far as is relevant:

"After several discussions between the Consultants at RLH, it is pretty clear that there is no general agreement as to what we should include in our new job plans. Whilst we are extremely keen to get negotiations going and to sort out a Provisional Job Planner sooner and given the above background to the Job Plan, it is quite clear that we as a group of General Radiologists should not – at present – provide individual Job Plans (as previously recommended by the LNC). The LNC without any hesitation has strongly advised all individual Consultants not to hand in an individual Job Plan and that it would be preferable to get general Job Plans for groups of Radiologists with a direct Action Plan as to (sic) they would organise their activities.

The present advice is therefore to wait for further negotiations between the LNC and the Trust, to await further BMA Guidelines on the new proposals, both from the Department of Health and also the Trust, and (obviously) to await the meeting between the Interventional Radiologists and the BMA and the BLT and Human Resource and our new Services Manager, Mr. Vaughn."

The LNC is the Local Negotiating Committee, consisting of representatives of the medical (including dental) staff of the Trust and the BMA Industrial Relations Officer.

30. Nonetheless, on 19 February 2004, Dr Chan signed a job plan showing a total of 15 PAs, of which 11.25 were in Direct Clinical Care and 3.75 were SPAs. Other consultant radiologists at RLH signed proposed job plans at about the same date.
31. On 19 March 2004, Dr Janet Murfitt, the Trust's Associate Clinical Director of Diagnostics and Therapeutics, sent an email to the consultants about their job plans. She said;

"All our job plans have been rejected for a variety of reasons. You should have received the latest bulletin from Douglas (No 8) which I attach below.

I have received specific points about each of your plans which I need to discuss with you individually.

I am advised that all SPAs should be on site apart from exceptional circumstances and that the .5 PA for cross-cover must be shown in hours on the job plan, which some of us have done. If you are currently full-time (11sessions) you must complete the form you have been sent regarding private practice earnings.

The deadline for resubmission of the job plans by me to the Trust is 31^st March."

32. Dr Chan's third witness statement referred to some additional correspondence. On 7 May 2004, his secretary on his behalf sent to Janet Murfitt and Douglas Bilton a letter summarising the three points of dispute between the radiology consultants and the Trust: the total number of PAs, pay in the shape of SPAs (Supporting Professional Activities) for time at home, and the calculation of on-call payments. Job plans for all of the 7 consultants were enclosed. Dr Chan's showed 16.125 PAs.
33. The job plans of the Trust's consultants under the new form of contract were determined, so far as the Trust was concerned, by its Consultant Contract Sign-Off Committee. It consisted of a number of representative consultants, a member of the LNC, the medical director and other representatives of management. At its meeting of 10 May 2004 it considered the job plans put forward by Dr Chan on behalf of the consultant radiologists. Its minutes record the following:

"The proposal of the committee was that interventionalists [i.e., interventionalist radiologists] be approved at 12 PAs, and the rest (including other submissions from the directorate seen previously) at 10/11 depending on job-plan submitted and advice from the clinical director, subject to …"

34. On 25 May 2004, Dr Gutteridge sent to all consultants an email informing them that the sign-off committee had been considering their job plans, and that offers would shortly be sent out. It stated that consultants could transfer to the new contract a any time, but that the offer of back pay to April 2003 would not be on offer after 14 June.
35. Ann Macintyre sent to Dr Chan, in a letter post-dated 27 May 2004, an offer of a new contract based on 12 PAs, with other departures from his draft job plan, including non-recognition of work at home. The result of this offer, if accepted, would be a salary of £103,866. The letter asked him to inform Ms Macintyre if he accepted this offer, but reminded him that he had the right to appeal against the decision to offer him a contract on the terms set out in the letter.
36. Dr Chan responded in his email to Dr Gutteridge of 26 May 2004, in which he expressed his astonishment at having been offered only 12 PAs. He said that he had spoken to Ann Macintyre, who had recommended that he request a formal appeal, and he asked to be informed when it was likely to take place. In a further email to Dr Gutteridge the following day, he said:

"I have been informed by Ann, that if I/we go to appeal/arbitration, then so long as we have indicated that we are ongoing in negotiations, then we can still get back dated pay to April 2003. Ann suggested that as the appeal procedure has not yet been set, that we should indicate that if the appeal/arbitration should fail, that we would still accept as a minimum the offered contract and that that in itself would help secure the back dated pay. Can you confirm that you are in agreement. We feel that there are generic issues that affect all of us and that on principle we should go to appeal, although it is generally agreed that the contract is very attractive to the older Consultants!!(??me). Can I also ask why the additional £5000 for longterm service at 9, 14 and 19 years has not been incorporated in the offer to us?"

37. On 27 May 2004, Dr Chan and a number of other radiology consultants signed a letter to Douglas Bilton, the PA to Dr Charles Gutteridge, the Medical Director of the Trust:

"We have received offers from yourself through Janet Murfitt for transfer onto the new contract. We have had the opportunity to discuss these offers among ourselves as a group and consider a number of them to be generous and acceptable offers.

There are nevertheless three sticking points;

Off-site Spa's

We have currently argued the case for this with regard to CPD, teaching preparation and research duties necessarily performed off site.

SPA's

The additional responsibilities arising as consultant in a teaching hospital should be acknowledged and greater than 2.5 SPA's should be offered where appropriate (See March 2004, RCR guidelines).

3. On-call rotas

We feel that payment reflected for on-call availability should, as recommended in the orange book, be based upon the actual rota worked inclusive of internal cover, rather than the "head-count" system.

We have seen Charles Gutteridge's correspondence that the Trust would like response by 7^th June as a minimum if the appeal arbitration fails we conditionally accept our offered contracts and would therefore accept back dated pay to April 2003."

38. It is not entirely clear what was meant by "conditionally" in the last sentence. I would have thought that the condition referred to was the consultants' failure in the appeal arbitration: i.e., if they failed in the arbitration, they accepted the offered contracts. This interpretation is consistent with Dr Chan's email of 27 May 2004, but Dr Gutteridge says that he understood the letter differently: he thought that the consultants' acceptance of the new contract was conditional on the resolution of the three sticking points. The letter was endorsed in manuscript:

"Ann – think we can now transfer on the terms offered – if they want to argue details later through appeals then so be it."

The endorsement was initialled "D", who I take to be Douglas Bilton, who perhaps understood the letter in the sense I think it bears. Ann was Ann MacIntyre, the Trust's Director of Human Resources.

39. Doubtless as a result of this letter and Mr Bilton's note, in June 2004 the Trust paid to Dr Chan his back pay to 1 April 2003 of some £22,000. Since June 2004 the Trust has paid him his increased salary, which I assume was that specified in Ms Macintyre's letter of 27 May 2004. Both his back pay and his increased salary were based on a job plan of 12 PAs. In addition, for July and August 2004 he received payment for additional programmed activity and a 5% on-call payment that would not have been paid had he remained under the old contract. The Trust's records are consistent with his having moved to the new contract.
40. A meeting took place between some of the signatories of the letter of 27 May 2004 and Dr Gutteridge and Mr Bilton in (according to Dr Gutteridge) late May or early June 2004. Dr Matson does not believe he was at the meeting, and I think he would have remembered if he had been; and Dr Renfrew confirms he was not there. If Mr Bilton made notes of the meeting, they have not been found. According to Dr Gutteridge, the three "sticking points" were resolved. In relation to off-site SPAs, he did not concede the issue, but said that the Trust would look at individual cases prospectively. He did not concede that the consultants should have more than 2.5 SPAs, but individuals could make a case for this. In relation to on-call payments, he said that if consultants were working a more intensive work pattern than their numbers indicated, additional payments could be made.
41. There is an issue as to whether this meeting resulted in the resolution of the three "sticking points". Dr Chan says that it did not. He says that the question of off-site SPAs was merely left for further negotiation with Janet Murfitt; that no agreement was reached on the amount of SPAs; but that the consultants conceded the third point. He says that the outstanding issues were never resolved. His evidence on this point is broadly supported by that of Dr Renfrew.
42. On 13 July 2004, Helen Crane, the PA to Ms MacIntyre wrote to Dr Chan:

"Following the job plan review, I am pleased to enclose two copies of the new Consultant Contract. This sets out details of pay and terms and conditions of service under the new arrangements.

I understand that you have accepted the offer. Please check the contract for accuracy, and sign both copies. Please return one copy to me at your earliest convenience."

43. Paragraphs 1, 2, 3, 6, 7 and 17 of the enclosed contract, also dated 13 July 2004, were as follows:

"The post

1. Consultant

Your job title is Consultant in Radiology.

2. Commencement of Employment

Your continuous employment for the purposes of this contract began on 1 April 2003.

…..

3. General Mutual Obligations

[These were substantially identical to the standard terms set out under paragraph 23 above.]

6.1 Job plan

We have agreed a prospective Job Plan that sets out your main duties and responsibilities, a schedule for carrying out your Programmed Activities, your managerial responsibilities, your accountability arrangements, your objectives and supporting resources.

You and your clinical manager will review the Job Plan annually in line with the provisions in Schedule 3 of the Terms and Conditions. Either may propose amendment of the Job Plan prospectively. You will help ensure through participating in a Job Plan that your Job Plan meets the criteria set out in the Terms and Conditions and that it contributes to the efficient and effective use of NHS resources.

The job plan will be subject to annual review as part of the appraisal process. The job plan will be agreed prospectively and may be subject to change in agreement with the postholder.

7 Programmed Activities

7.1 Scheduling Of Activities

We have agreed in the schedule of your job plan the programmed activities that are necessary to fulfil your duties and responsibilities, and the times and location at which these activities are scheduled to take place. The Trust will not in future schedule non-emergency work during premium time without your agreement.

Your job plan contains 12 Programmed Activities per week on average, subject to the provisions below for recognising emergency work arising from on-call rotas.

….

17 Grievance Procedures

Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of the Trust's disciplinary procedure, or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures."

44. The provisions of this contract, apart from those that were personal to Dr Chan, were substantially identical to those of the standard form agreed by the Department of Health and the BMA.
45. Dr Chan did not sign, or if he did so did not return, the enclosed form of acceptance of the new contract. On the other hand, he did not reply to the letter of 13 July 2004 taking issue with the assumption that he had accepted the offer of the new contract. At no time since June 2004 has Dr Chan sought to repay his back pay or increased salary; he has not suggested that it was not due to him; and conversely he has not claimed that his back pay or salary did not satisfy his rights to remuneration.
46. At the end of January 2005, the Trust excluded Dr Chan from the Trust premises. In September 2005, he was permitted to return to restricted duties, with Dr Matthew Matson as his mentor.
47. As a result of HSC 2003/012, the Trust formulated a new disciplinary procedure. The document disclosed by the Trust in these proceedings states that it was approved/adopted by "Clinical Advisory Board: 17 May 2005; Standing Medical Advisory Committee: 6 September and 8 November 2005; Policies Working Group: 18 October 2005". The document set out procedures to be followed by the Trust in disciplinary matters. Paragraph 2 of that document is as follows:

"The new arrangements replace the current disciplinary procedures enshrined in HC(90) 9, as implemented by Trust policy document [insert title/reference]. The new arrangements also replace the provisions in HC (82)13 for Special Professional Panels (the "Three Wise Men"). The right of appeal to the Secretary of State held by certain practitioners under paragraph 190 of their terms and conditions of service is now lost. This policy also replaces the previous Trust Disciplinary Procedure for Non-Training Grade Medical and Dental Staff and Policy for Suspension of Medical Staff."

48. There is an issue as to whether this document was in fact adopted by the Trust and, more particularly, whether the procedures it set out were incorporated in Dr Chan's contract of employment. I address that issue below.
49. Following the issue of the report of the Inquiry Panel, on 31 March 2006 Dr Gutteridge wrote to Dr Beedham, the clinical director of Women and Children's Services, asking him to investigate the possibility of Dr Chan working in a different environment within the Trust. The letter enclosed what were described as Dr Chan's substantive job plan and his then current job plan, drawn up to reflect the current conditions on his practice. Unfortunately, the former job plan was not in evidence, and I assume that the document has been lost or destroyed. The letter clearly assumed that the substantive job plan set out Dr Chan's normal working duties.
50. In June 2006 an appraisal of Dr Chan was completed. The appraisal folder included 3 job plans for him. Dr Chan inserted the heading "Job Plans for Dr O Chan – Past, present and future" at the top of the first of these, with the sub-heading "Original Job Plan – before January 2004 (before suspension)". The reference to 2004 was a mistake, and it should have read 2005. This job plan contained 15.125 PAs. Dr Chan had inserted on the second job plan the heading: "Present job Plan whilst HC(90)9 enquiry continues – After July 2005". It contained 12 PAs, comprising "7.5 + 2" for "Direct clinical care (including unpredictable on-call)" and 2.5 supporting professional activities. Dr Chan inserted as a heading to the third job plan: "Proposed Future Job Plan – After HC(90)9 enquiry – After June 2006". "Proposed" meant proposed by Dr Chan. It too contained 12 PAs, but divided as 8+2 for "Direct clinical care (including unpredictable on-call)" and 2 for SPAs.
51. A further contract of employment dated 22 June 2006 was provided to Dr Chan. It was in the same terms as the contract dated 13 July 2004. Again, Dr Chan did not sign and return the enclosed acceptance.
52. In his witness statement made for the purposes of the inquiry referred to below, Dr Chan stated:

"4. I was employed as a whole time consultant until 1^st April 2003 when I accepted the new consultants' contract. … "

53. In their letter to the Trust's solicitors dated 17 July 2006, Dr Chan's solicitors stated that no final agreement appeared to have been reached on his contract. This suggestion was rejected by the Trust's solicitors in their reply. The issue having been so recently raised and addressed (and the correspondence on this point continued), it is all the more significant that paragraph 40 of Dr Chan's original Particulars of Claim, dated August 2006, stated:

"The Claimant accepted the new model consultants' contract on or about 27 May 2004."

The pleading was confirmed by the requisite statement of truth signed by the Claimant. A statement to the same effect as paragraph 40 had already been made by Dr Chan's solicitors in their letter to the Trust's solicitors of 11 August 2006.

54. The Trust was informed that Dr Chan had resiled from this contention by his solicitors' letter dated 19 September 2007, and it agreed to the amendment of his Particulars of Claim to raise the issue as to whether he had in fact accepted the new model contract. Dr Chan's re-amended Particulars of Claim alleged, contrary to the now admitted fact, that no copy of the new model consultant contract had been provided to Dr Chan before his dismissal. Perhaps more significantly, it alleged:

(a) that there were a number of "sticking points" notified to the Trust in the letter of 27 May 2004;

(b) that Dr Chan's acceptance of the new model contract was dependent upon agreement as to the precise terms and conditions of the contract and to his agreeing a job plan with the clinical director.

The pleading does not allege in terms that the "sticking points" remained such. No facts or matters were specified in support of allegation (b).

55. The Re-re-amended Defence alleges simply that Dr Chan accepted the new model contract "in late May or early June 2004 or by his conduct following receipt of the new model contract by letter dated 13 July 2004 and in working thereafter and being paid in accordance with the new contract and agreeing a new job plan on or before 7 June 2006". No particulars of this allegation were given.
56. Dr Chan enlarged on his case that he had not accepted the new model contract in his second witness statement. In it, he stated that the only information that had been provided by May 2004 was information on the new pay scales. That, I think, understates what was provided on 15 August 2003, quite apart from the fact that the terms of the new model contract, having been agreed in October 2003, must have been available from the BMA for any consultant who was sufficiently interested. (Dr Chan's explanation in evidence of his not having obtained the new contract form, that consultants are very naïve and he did not know it existed, is one I do not accept). In paragraph 6 he repeated that he had not received a copy of his contract until disclosure of documents in these proceedings. In his third witness statement, dated 16 October 2007, he again stated that no contractual documents were ever forwarded to him. He said that he would not have signed a contract because he had not agreed his job plan. He was paid on the basis of 12 PAs but had never agreed to this. He added:

"A fundamental dispute remains between the Trust and I (sic) and I continue to refuse to accept the new contract unless and until it provides for me to be paid for the hours I work and which the Trust requires me to work in order that it can provide the service it is obliged to provide to the public."

He did not in his witness statement indicate to whom his refusal had been communicated or explain how he had come to state that he had accepted the new contract or his acceptance of the back pay and increase in salary.

Dr Chan's job plan

57. It is apparent from the foregoing that a doctor's job plan is central to the new form of contract. Dr Chan contends that his job plan was never agreed, and this is one basis of his assertion that he was never employed under the new model contract.
58. The evidence as to the agreement or otherwise of Dr Chan's job plan is sparse, possibly because the issue was raised relatively late and was inadequately pleaded. It has to be viewed against the background of the disciplinary proceedings. At the end of January 2005, the Trust excluded Dr Chan from the Trust premises. In September 2005, he was permitted to return to restricted duties, with Dr Matthew Matson as his mentor.
59. In paragraph 65 of his first witness statement, signed by him in August 2007, Dr Chan said:

"I and my colleagues had provisionally accepted the consultant's new model contract on or about 27 May 2004, but this was subject to the precise terms and conditions of the contract, which were not available at that time and in particular were subject to us agreeing job plans with the clinical director. No job plan was ever provided, let alone agreed and as such there was never any formal agreement on the new contract. The agreement which we reached was with regard to pay scales."

60. The contrast between the first sentence of this extract and paragraph 40 of Dr Chan's original Particulars of Claim is evident. By 27 May 2004, the Department of Health and the BMA had agreed the terms of the new model contract, so that it was inaccurate to state that their precise terms and conditions were unavailable, although apparently they had not been provided by the Trust, and copies of the proposed individual contracts had not been sent to consultants. According to Dr Chan's second witness statement, the letter dated 27 May 2004 was written after the Trust had agreed that some consultants would have 12 PAs, and that there would be a so-called arbitration procedure to resolve disputes. (The statement refers to a letter of 20 May 2004, but since there is no such letter this must be an error for 27 May). Dr Chan repeated that he had not been provided with a job plan by the date of his dismissal.
61. No appeal against the decision to award Dr Chan 12 PAs was ever held. Dr Chan did not pursue his application for such an appeal.

The disciplinary proceedings

62. During 2003 and 2004 allegations were made about Dr Chan's conduct. By letter dated 11 October 2004 he was informed that an investigating officer had been appointed to conduct an investigation into them. For present purposes, the relevant allegations were numbers 1 and 3:

"1. Disregard of directions from the Medical Director and in particular with regard to:

a) Relationships with colleagues and subordinates:

b) Disregard of the feelings of colleagues by using inappropriate verbal and written communications

c) Disrespect to colleagues and subordinates by inappropriate behaviour, verbal and written communications

…

3. Disregard of Trust Policies and Procedures in particular:

a) Whistleblowing/Raising Concerns

b) Media Protocols

c) Code of Responsible Practice for Medical Illustrations

d) Consent of Patients to Participate in Research

e) Standing Financial Instructions".

63. Despite this, on 25 October 2004, he sent to the visiting committee of the Royal College of Radiology, who were to inspect the Trust in order to assess its accreditation for training purposes, a document entitled "Summary of Problems NOT highlighted in RCR 2004 Report BLT Radiology SpR Training." The 2004 Report to which he referred had been prepared on behalf of the Barts and London Trust for the Royal College. SpRs are specialist registrars. The letter formed the basis of one of the charges later considered by the Disciplinary Inquiry, to which I refer below. Among other things, it accused the Training Committee, chaired by Dr Sarah Vinnicombe, a consultant radiologist and the head of training in the Radiology Department, and the Clinical Director, Dr Janet Murfitt, of lack of support, unfair treatment, harassment and bullying of SpRs. The letter also enclosed a number of emails.
64. Dr Chan addressed the visiting committee of the Royal College. The reaction of some of his colleagues to what he said can be seen from their letter to the Chief Executive and to Dr Guttridge, the Medical Director:

"The prime purpose of this letter is to document some of the unacceptable statements made by Dr Otto Chan during the recent Royal College of Radiologists Training Accreditation Committee visit to the BLT Radiology Training Scheme. We feel it is important to provide you with this documentation whilst our memories of the events are still fresh. Since we were personally present at the meeting we can attest to the accuracy of our observations.

During the meeting between The Royal College assessors and the BLT consultants on Monday 1^st November – Dr Chan told the assessors, falsely that:

The head of training and the Associate Clinical Director had

Harassed radiology SpRs

Intimidated SpRs

Undermined and sabotaged the Radiology Training Programme

The Head of Training had lied

SpRs had been harassed by consultants

There were no Royal London consultants on the BLT training committee,

Dr Chan's repeated detrimental comments were clearly intended to defame the head of training, Dr Sarah Vinnicombe, the Associate Clinical Director, Dr Janet Murfitt, and Dr Chan's consultant colleagues. Not only is an assessment visit by a Royal College a totally inappropriate place to make such comments, the remarks are defamatory and totally contrary to the appropriate behaviour of a hospital consultant. They also, in this instance, have the serious consequence of creating the wrong impression that whole department is dysfunctional, thereby running the risk of prejudicing the outcome of the Royal College Training Accreditation visit."

The letter was signed by the Professor of Radiology, the Professor of Diagnostic Training and Dr Alison MacLean, one of the consultant radiologists.

65. On 21 December 2004, the Investigating Officer again wrote to Dr Chan, setting out additional allegations. She produced a draft report dated 20 January 2005 in which she recommended formal disciplinary action and his exclusion. As a result, on about 21 January 2005 he was excluded from the Trust. A disciplinary process was proposed. By letter dated 2 March 2005, he was informed that the matter would go to a formal hearing to consider the following core allegations:

"1. Disregard of directions from the Medical Director and in particular with regard to:

a) Relationships with colleagues and subordinated:

b) Disregard of the feelings of colleagues by using inappropriate verbal and written communications

c) Disrespect to colleagues and subordinates by inappropriate behaviour, verbal and written communications

2. Disregard of Trust Policies and Procedures in particular:

a) Whistleblowing/Raising Concerns

b) Media Protocols

c) Code of Responsible Practice for Medical Illustrations

d) Consent of Patients to Participate in Research

e) Standing Financial Instructions

3. Mal-intent and wilful behaviour designed to render the Radiology department dysfunctional

4. Inappropriate disclosure of information to the media, with mal-intent and not utilising Whistleblowing legislation in good faith

5. Subjecting at least two members of staff to racial abuse and harassment."

66. The disciplinary hearing was due to take place on 11 and 12 April 2005. On 11 March 2005, Dr Chan's solicitors, Brachers, wrote to the Trust. They stated:

"It is not clear from the correspondence whether Dr Chan is at risk of dismissal in the contemplated disciplinary hearing, but we assume that that risk exists, not least because Dr Chan reasonably believes that the Trust's agenda and objective is to dismiss him. Indeed the quality and quantity of the allegations set out which he must face at the disciplinary hearing are sufficiently insubstantial and diverse as to compound his fears."

They added:

"There is no doubt that Dr Chan has ruffled many feathers over the last ten years but he has been justified in doing so. His passion for honesty, justice and the provision of an excellent service, both for training and for patients in the NHS has motivated him to counter secrecy, dishonesty and obfuscatory bureaucracy for the sake of a more efficient service."

67. Brachers stated that they understood that the Trust proposed to deal with the allegations against Dr Chan under the provisions of its Disciplinary Policy, Procedure and Rules relating to personal conduct. They contended that the applicable procedure was that relating to professional conduct within the definition in HC(90)9 and threatened proceedings to enforce that contention.
68. The Trust's solicitors, Capsticks, replied on 22 March 2005. They said:

"We confirm that the allegations against your client have therefore been categorised by our client as "personal conduct", and as such will be determined in accordance with our client's disciplinary policy, procedure and rules.

We further confirm that the allegations against your client, if proven, may be deemed, to be gross misconduct and therefore result in the termination of his employment. We refer you to paragraph 32 of our client's Disciplinary Procedure which details, inter alia, the following examples of gross misconduct:

Serious bullying and harassment

Serious insubordination

Action calculated or likely to bring the Trust into disrepute and which is not brought under the provisions of the Public Interest Disclosure Act, Health and Safety at Work Act or internal Trust procedures for raising matters of concern to staff

Serious breach of confidence, subject to the terms of the Public Interest Disclosure Act 1998."

69. As a result of this response, on 24 March 2005 Brachers commenced proceedings in the High Court against the Trust seeking an injunction restraining the Trust from, as it seems to me, treating the allegations against him as allegations of personal rather than professional conduct. In their letter to Brachers of 1 April 2005, Capsticks continued to maintain that the allegations related to Dr Chan's personal, rather than his professional, conduct, but said that the Trust was "anxious to ensure that the hearing of the allegations into [Dr Chan's] conduct [was] perceived by him and his consultant colleagues to be fair" and accordingly agreed to adopt the procedure identified in Annex B to the HC(90)9 procedure applicable to professional conduct. That disciplinary procedure was then adopted and the High Court proceedings stayed by consent.
70. An Inquiry Panel was appointed. Its Chairman was Mr Stephen Miller QC, who sat together with Mr Paul Butt, a Consultant Radiologist from Leeds and Ms Liz Fradd, an independent health service adviser. Its terms of reference were as follows:

1. "The inquiry Panel will consider the allegations of inappropriate conduct/behaviour by Dr Chan that are particularised in the Appendix to these terms of reference.

2. The inquiry Panel will establish the facts of each allegation and will determine whether, on the balance of probabilities, it considers that Dr Chan is at fault in respect of his performance or behaviour.

3. If the inquiry Panel determines that Dr Chan is at fault in respect of his performance or behaviour, it will make recommendations to the Trust at to what action the Trust should take in respect of Dr Chan.

4. The Inquiry Panel will represent a report to the Board of the Trust in two parts:

the first will set out the Panel's findings of fact;

the second part will set out the Panel's views on whether Dr Chan is at fault in respect of his performance or behaviour, and if so what action it recommends as to disciplinary action that the Trust should take."

71. There were 19 separate allegations in Appendix A to the Terms of Reference, including "Unsubstantiated allegations of harassment, intimidation and bullying of trainees by Drs Vinnicombe and Evanson in a presentation made at the RCR Training Committee Visit, without prior discussion with or notification to Drs Vinnicombe or Evanson".
72. The Inquiry Panel heard evidence over 12 days between 20 June 2005 and 29 November 2005. Both parties were represented by counsel at the hearing. The last two paragraphs of counsel for the Trust's closing written submissions were as follows:

"By its terms of reference the Panel is asked to establish the facts in relation to each allegation against Dr Chan and to determine whether he is at fault in respect of his performance or behaviour. The Trust invites the Panel to find the facts in relation to each allegation proved and to find that individually and collectively they amount to gross misconduct.

The Trust is mindful of the duties it owes as an employer to protect its employees from bullying, intimidation harassment and stress. The Trust considers, and the Panel is invited to find, that Dr Chan's continued employment by the Trust is inconsistent with the proper performances of that duty."

73. The Panel produced its final report on 24 March 2006. Dr Chan and the Trust sensibly agreed that the report is admissible as evidence at this trial, and that the findings of fact within that report would not be challenged. In view of the substantive issue raised by the Trust as to its right to dismiss Dr Chan for his gross misconduct, it is necessary to summarise the Panel's relevant findings.
74. One of the Radiology department's roles was to provide training for Specialist Registrars. The Head of Training was Dr Sarah Vinnicombe, another Consultant Radiologist. The responsibility for devising a suitable training programme rested upon Dr Vinnicombe in consultation with Dr Evanson (a Consultant Neuro-radiologist who was the Clinical Tutor) and the Training Committee. Dr Vinnicombe had been appointed Head of Training in December 2000 and remained in post until March 2004 when she resigned. She was persuaded to return in May 2004 in order to oversee the presentation of the Trust's training programme to the accreditation team from the Royal College of Radiologists in November 2004. Dr Chan had strong views about the ways in which (and when) training should be carried out and took matters into his own hands in about March 2004 informing the Training Committee that he intended to set up a teaching programme for the Specialist Registrars which would take place every Thursday afternoon during the working day. This decision was unilateral on the part of Dr Chan and was made in defiance of Dr Vinnicombe in circumstances in which Dr Chan knew that it would undermine her position as Head of Training. One of the consequences of his action was that it precipitated the resignation of Dr Vinnicombe from her post as Head of Training since she considered her position had been significantly undermined and had become untenable.
75. The Inquiry Panel found that Dr Chan had circulated letters dated 11 and 25 March 2004 to all consultants and specialist registrars. The letters stated "Copy: - all SpRs and Consultants at BLT – RCR visit 2004", and thus implied that they had also been sent to the Royal College of Radiologists or an intention to send them for the purposes of the forthcoming accreditation visit. The Inquiry Panel made no finding that the letters were in fact sent to the Royal College "although Dr Chan plainly intended to imply that they had been and the threat was therefore there". The majority of the Inquiry Panel found that both letters contained inaccurate and derogatory statements and were part of a deliberate attempt to destabilise the position of the Training Committee in the eyes of the Consultants and the Specialist Registrars; and that the threat of a wider circulation to the Royal College was a calculated part of that attempt. Dr Chan admitted that it had been wrong to involve the SpRs in his dispute with the Training Committee, and that the letters should not have been circulated to them. The Inquiry Panel stressed that the correspondence took place after the Trust-initiated mentoring process had been set up; and that the first letter was sent on the very day that Dr Chan had had a formal meeting with Dr Gutteridge "to discuss the way forward in developing relationships in management … in the radiology department". Dr Chan had said in evidence that the letter of 11 March was sent "to mend fences", and he could not see that either letter was in any way derogatory of Dr Vinnicombe. The Inquiry Panel found that this evidence demonstrated "complete lack of insight" on Dr Chan's part.
76. On 1 April 2004, Professor Armstrong, the Professor of Radiology at the Trust, wrote to Dr Gutteridge expressing his concern over Dr Chan's "(continuing) to interfere with the cooperative workings of our department". In reply, Dr Gutteridge referred to the mentorship programme designed to deal with "the longstanding breakdown in relationships between Dr Chan and other members of the department (which) is having a detrimental effect on service and training provision".
77. It is against that background that Dr Chan's letter of 4 June 2004 to Dr Vinnicombe, who had returned as Head of Training, and the events leading to it fall to be considered. The letter concerned in part a number of confidential emails between Dr Vinnicombe, Dr Evanson and Jayn Amantoola from the Human Resources Department discussing slot sharing for flexible trainees sent between 19 and 21 April 2004 which had come into Dr Chan's possession. Dr Chan's evidence to the Inquiry Panel as to how he came to have the emails was contradictory. He initially said that they had been faxed to him by his wife, who had opened an envelope containing them that had been delivered to their home on 27 April 2004 after he had gone to work. When it was pointed out that the copies he had did not have a fax header, Dr Chan said that they had been couriered to him at the hospital by his wife. Why the matter was so urgent that a courier was used, and if so why his wife had not faxed them to him (particularly since she had, according to her evidence, already faxed them to one of the SpRs), does not seem to have been explained. In paragraph 3.31 of their final report, the Inquiry Panel understandably cast doubt on this account, stating that they "found the evidence about what (was) said to have occurred far from convincing", since Dr Chan was able by 2 pm on the day he said he had received the emails to draft a detailed letter analysing their content, and had managed to copy and circulate his letter and the emails to all of the radiology consultants and SpRs; but regrettably they made no specific finding on this.
78. Having received copies of the emails, without first speaking to Dr Vinnicombe or to Dr Evanson, as mentioned above Dr Chan distributed them with a covering letter to his fellow consultants and to the SpRs. His letter and the emails caused consternation to the SpRs, who sent a letter to Dr Murfitt complaining about the "underhand and clandestine way in which the job share plans had been discussed". Dr Chan took the matter further, by contacting the newspaper Hospital Doctor, to whom the emails were shown, together with the SpRs' letter, and acting as spokesman for an attack on the management. He was quoted as saying, "This totally cynical approach is typical of what goes on in the NHS." He also wrote to the BMA, who responded:

"At the moment it does not seem that the Trust has approached any individual about making any changes but is having a discussion about what might be possible – indeed I see that in one of the e-mails there is reference to the BMA being consulted about the relevant terms and conditions. Therefore, at present, no individual has suffered a detriment or even been asked to consider what the Trust might wish to propose."

79. The Panel commented:

"This seems, to the Panel, to have been a sensible and reasonable approach, although of course by this time the damage to relationships within the Department had probably already been done."

80. The letter of 4 June 2004 to Dr Vinnicombe accused her of leaking the emails to him. He did not explain to the Panel why he thought she should have wanted to do so: it would have been quite irrational of her to have done so. Referring to the meeting held by the consultants, he said that

"We were appalled at the contents of the letter (from the SpRs), the secretive and underhand manner that Jayn Amantoola and Jane Evanson had carried out their discussions and the malicious aspects, in particular, enforcing changes whilst an SpR was on maternity leave without discussion…"

81. He sought to justify his conduct in disclosing the emails and discussing them with the editor of Hospital Doctor, and accused Dr Evanson and unnamed others of trying to intimidate several SpRs. Dr Chan copied this letter to all the SpRs and consultants and, by inserting "Copy: … RCR visit 2004", indicated either that he had sent it to the Royal College, or that he would do so for the purposes of the accreditation visit due to take place in November 2004.
82. As a result of Dr Chan's conduct, on 18 June 2004, Dr Paul Butler, a Consultant Neuroradiologist at the hospital, wrote to Dr Gutteridge to express his "concern over Otto's treatment of Drs Jane Evanson and Sarah Vinnicombe over the proposals (and they were no more than this) for flexible trainees, instigated by the Deanery". He concluded:

"This matter has attracted the attention of the Royal College of Radiologists and it would appear that we may already have adversely affected our next 'visit' at the end of this year. Again it would be a travesty if, what is by common consent, an excellent training scheme is compromised in this way. I have spoken to Otto about his treatment of Jane but to no avail and I can only conclude that this (and I suspect) other matters are dealt with at the highest level."

83. Dr Chan accepted that the disclosure of the emails to Hospital Doctor was not justified under the Media Protocol and Whistleblowing/Raising Concerns Policy of the Trust, of which he said he was unaware. However, the Panel concluded:

"There is no doubt that Dr Chan should have made himself aware of them. He was a lead clinician; he had registrars working under him and he was a trainer. That said, given the action he did take, the Panel is satisfied that even had Dr Chan been familiar with the protocol and policies, he would have done precisely the same thing. The evidence about this and the other matters which we have had to consider demonstrates that Dr Chan is given to precipitate behaviour without thinking of the consequences. He should at the very least have asked Dr Evanson (with whom he did not appear to have any quarrel) for an explanation of what was going on. Instead, he rushed off a letter setting out his own interpretation of the proposals and stirred up bitterness and resentment amongst the SpRs and unfairly undermined their trust in and respect for the College Tutor. Again, the Panel has concluded that Dr Chan's conduct was ill-considered, wrong and unacceptable.

84. Paragraph 3.36 of the Panel's decision is as follows:

"Finally it is to be noted that despite the fact that Dr Evanson's e-mail to all of the consultants and the SpRs on 17^th May 2004 made it clear that slot sharing did not imply shared on-call, Dr Chan still chose to send copies of the e-mails to the Royal College of Radiologists immediately before their Accreditation Visit six months later and to raise it as part of his presentation."

85. The Panel held that the letter "was a deliberate attempt by Dr Chan to drive a wedge between the consultants and the SpRs on the one hand and Dr Evanson and Dr Vinnicombe on the other".
86. The Inquiry Panel made further findings relating to the presentation of the Trust's training programme to the accreditation team from the Royal College of Radiologists in November 2004. The visit of the accreditation team was obviously important: in order to retain its training status, the training programme devised and implemented by the Trust had to be accredited by the Royal College of Radiologists. Accreditation was reviewed every 4 years by means of a 3-day visit by assessors nominated by the Royal College.
87. On 25 October 2004 Dr Chan wrote to the Royal College Assessors. His letter included allegations that the Training Committee and the Clinical Director (Dr Murfitt) had failed to support the training programme and the Specialist Registrars. He again alleged that there had been harassment and bullying of the Specialist Registrars by the Training Committee and by the Clinical Director. He enclosed copies of the e-mails referred to above relating to the flexible trainees. As the Inquiry Panel found, these were obviously extremely serious allegations, but Dr Chan did not tell Dr Murfitt, Dr Vinnicombe or Dr Evanson that he was going to send the document to the assessors, nor did he tell Dr Vinnicombe that he was going to give a presentation after she had given the official presentation on behalf of the Trust.
88. Dr Chan made his presentation on 1^st November 2004. The Inquiry Panel found that it was clearly his intention to undermine the radiology training programme which was being put forward by Dr Vinnicombe. They found that there was no evidence to support Dr Chan's allegations of bullying and harassment of trainees and that Dr Chan's presentation was in a number of respects inaccurate.
89. On the issue of fault in relation to Dr Chan's presentation on 1^st November 2004, the Panel stated:

"... [Dr Chan] launched into a public attack on the Training Committee and its members, without any prior notice to Dr Vinnicombe and Dr Murfitt (who was also the object of severe criticism), although it is to be noted, he did find time to send a letter to the Royal College on 25^th October 2004 ... [Dr Chan's] behaviour on 1^st November was completely unacceptable for a senior consultant; indeed it was nothing short of outrageous ... [with] the possible consequence of creating the (wrong) impression that the whole department was dysfunctional, thereby running the risk of prejudicing the outcome of the Training Accreditation Visit."

90. The Panel added that Dr Chan's attack on Dr Vinnicombe and Dr Evanson in his presentation to the Visitors from the Royal College was unacceptable. There was no evidence to support his assertions and they were unsubstantiated.
91. The Royal College assessors rejected his complaints. In their report, they concluded:

"This is a scheme that has a wide and excellent clinical base with enthusiastic and able trainers. It is able to deliver the full curriculum and offers opportunity for core and sub-specialty training. It has supportive and committed trainees who value their educational environment. There are limitations to the delivery of training resulting from the IT infrastructure and the geography of the departments; in addition, there is a degree of blight arising from expectation of the forthcoming PFI development. Nevertheless by all measure of outcome – quality of trainees, examination results, research and subsequent consultant appointments – it is a successful training scheme.

However, it is seriously destabilised by internal disagreements which are inappropriately amplified by a single trainer. This has resulted in conflicts relating to the delivery of lectures and training as well as confusion and uncertainty for the trainees about their responsibilities and duties on the attachments at RLS and SBH. It is recognised that these difficulties may be symptoms of wider issues arising from the amalgamation of the two hospitals and that these problems are currently being reviewed across the combined unit.

Not only have these aspects impacted in the trainees and their training, but they have resulted in the withdrawal of potential leaders of the training scheme from active involvement in its management. All the consultants in both hospitals should share "ownership" of the training scheme and work towards developing this over time. The conflict appears to be about issues that could easily be resolved if all the trainers and trainees recognised and respected the remit of the duly appointed members of the Training Committee and the decisions."

The "single trainer" was Dr Chan.

92. Of the 19 allegations against Dr Chan, allegations 1 (Intimidating, disruptive and domineering behaviour in Training Committee and other departmental meetings), 5 (Circulating letters dated 11 and 25 March 2004 to all consultants and SpRs and to members of the RCR that contained inaccuracies and derogatory statements), 6 (Wide and inappropriate circulation of letter of 4 June 2004 containing derogatory and inaccurate statements in respect of Drs Vinnicombe and Evanson), 8 (Circulation of an email to all Diagnostic Imaging Consultants on 15 October 2004 which falsely accused Dr Vinnicombe of "putting a stop" to Dr Chan's Thursday afternoon teaching sessions), 9 (Inappropriate and aggressive communication with Dr Vinnicombe in response to an email exchange between Dr Vinnicombe and SpR Fraser Ingham), 10 (Inaccurate presentation at the RCR Training Committee visit that undermined the radiology training programme), 11 (Unsubstantiated allegations of harassment, intimidation and bullying of trainees by Drs Vinnicombe and Evansom in a presentation made at the RCR Training Committee visit, without prior discussion with or notification to Drs Vinnicombe and Evansom) 13 (unauthorised disclosure of information contained in private and confidential e-mails that were not addressed to, or copied to, Dr Chan to trainees, consultants and the BMA), 14 (unauthorised disclosure of the said information to Hospital Doctor without reference to the Trust's Media Protocols and Whistleblowing/Raising Concerns Policy) and 15 (threatening to disclose other internal Trust information to the BMA and Hospital Doctor) were found proved; the remainder were rejected.
93. The final conclusions of the Panel were as follows:

"8.1 The Panel has found that Dr Chan's actions in relation to the RCR Visit and the flexible trainee e-mails to have been seriously at fault. What is of concern to the Panel and will be of concern to the Trust is that what has emerged from the Inquiry is a repetitive pattern of behaviour. In a situation where Dr Chan feels that his viewpoint is being ignored or rejected, or he or his protégés are being disadvantaged, his instinct is to go on the attack with all the means at his disposal without stopping to consider the consequences. The consequences have almost invariably been unnecessary upset and humiliation to his professional colleagues. Yet Dr Chan appears to have no insight into the effect of his behaviour. Sadly, the Panel saw no evidence during the Inquiry that Dr Chan had learnt anything from his experiences during the investigation or the Inquiry process.

8.2 It is no coincidence that those who have borne the brunt of Dr Chan's more recent behaviour have been those in a management role, Dr Vinnicombe and Dr Evanson. In the past it has been Dr Murfitt. The Panel was given powerful evidence from Professor Martin, the current Clinical Director, about how difficult it was to manage Dr Chan even at a time when this Inquiry was going on. The only person who appears to have known how to do it successfully was Jill Williams, the former Radiology Department Manager.

8.3 The Trust must, however, bear some responsibility for what has occurred. Dr Chan's behavioural traits were well known before 2004. There have been well-documented brushes with the management in the past; complaints by and about him and a period of mentoring. In the event, Dr Chan has to some extent been allowed to get away with it, with some of those with the difficult task of managing him choosing to have as little to do with him as possible. Also, we cannot ignore the fact that a contributory factor to what did occur in 2004 may well have been Dr Chan's perception that the management positions in the area of training, which was obviously dear to his heart, were at the time in the gift of the Associate Clinical Director, rather than being filled by open election. He did of course, not baulk at accepting the position of lead clinician in his particular area of expertise when it was offered to him without election.

8.4 The Trust now has the difficult decision of what to do with Dr Chan. The Panel has found serious deficiencies in his behaviour and, as we have observed, his actions and conduct caused upset and humiliation to his professional colleagues. Those colleagues will still have to work with him, at least in the same environment, were he [to] remain in the Trust; a prospect which they may not relish. On the other hand Dr Chan is obviously a skilled and dedicated clinician and as such, a resource which the Trust could ill afford to lose and one which it would find difficult, if not impossible to replace. Nor can Dr Chan's contribution to training be overlooked. His dedication to what he regarded as the trainees' best interests was self-evident, even if his efforts to further them were sometimes misguided. It is clear that there is almost universal support for him from that quarter, as well as from a large number of his consultant colleagues.

8.5 The Trust may conclude that the deficiencies in Dr Chan's behaviour we have identified have been such that he should not be allowed to remain in post, not least because of the effect on some of his professional colleagues. On the other hand the Panel wishes to emphasise that, looked at overall, his contribution to the Radiology Department and the wider interests of the Trust as a whole has been a very substantial one and would be likely to be so in the future. Some thought should be given to the possibility of placing Dr Chan in a more structured environment where he is less likely to come into conflict with those charged with managing the provision of radiological services and training. Were that to be possible, he would, of course, have to understand that any repetition of the sort of behaviour which we have condemned, could only have one consequence. One member of the Panel also recommends that Dr Chan be offered a health screen because it may be that his excesses of behaviour could be controlled by medical management."

Events following the report of the Inquiry

94. By letter dated 31 March 2006, as recommended by the Inquiry Panel, Dr Gutteridge asked Dr Beedham, to investigate whether it would be possible to move Dr Chan to an environment where he was less likely to come into conflict with those charged with managing the provision of radiological services and training.
95. On 10 April 2006, the Trust's solicitors wrote to Dr Chan's solicitors enclosing a copy of the Inquiry Panel report and stating that there would be a meeting on 24 April 2006 at which Mr Goulston, the Trust's Director of Finance and Deputy Chief Executive, and Katherine Fenton, the Trust's Director of Nursing and Quality (together referred to as the Disciplinary Panel), to consider the Inquiry Panel's findings and recommendations, and to consider the possibility of placing him in a more structured environment. The letter warned that the possible outcomes included dismissal from the Trust's employment or the issuing of a final written warning, and stated that Dr Chan would have an opportunity to make representations.
96. The Disciplinary Panel met on 24 April 2006. At the outset of the meeting the chairman stated their purpose. He said:

"This is not a hearing to go back over the evidence. We are here, we have received the report [of the Inquiry] and we are here to make a decision, and the decision is either to dismiss Otto or to give Otto a final written warning. That is the purpose of this meeting."

97. Thus it was not made clear whether the dismissal envisaged was by notice or summary. The chairman continued:

"We are going to hear some evidence from Charles Gutteridge in terms of presenting the case for making a decision. We are then going to hear some evidence from Trevor Beedham, in terms of the feasibility of Otto retuning back to duties at Barts and the London. Then we will hear from Otto in terms of anything you would like to say, in terms of mitigation in respect of the report. And then at that point, we will stop and ask you to leave obviously and we will consider our decision."

98. Dr Chan was represented by Dr Goodier, who proposed that Dr Chan could work successfully in a structured environment that involved his being managerially accountable to clinicians in the surgery and anaesthesia directorate, with presumably a professional accountability to his radiology colleagues in the diagnostics and therapeutics directorate. Dr Chan had prepared a written submission, in which he stated:

"Dr Chan accepts the findings and in particular accepts the criticism of serious deficiencies in his behaviour and actions that have caused upset and humiliation to his professional colleagues.

…

Dr Chan would clearly accept a final warning and that should there be a repeat of his unacceptable behaviour, then he would be dismissed."

However, the thrust of his submission was that he should be allowed to return to work, if necessary with mentors external to the Radiology Directorate.

99. At the end of the hearing, the chairman said:

"Just to reiterate. What we will do now is we will consider all the evidence and attempt to make a decision as to a final warning or dismissal."

100. The Disciplinary Panel had second thoughts as to their ability to make a decision on the material before them at their first meeting. The chairman informed Dr Chan by letter dated 26 April 2006 that they required additional information, summarised in the letter. They originally thought that Mr Beedham should conduct additional interviews, but then decided to do so themselves. On 18 May 2006 they interviewed Dr Paul Yate, Mr Neil Rogers (of the Surgery & Anaesthetic Directorate) and Professor Martin, Dr Murfitt and Dr McLean (of the Imaging Directorate). Neither Dr Chan nor anyone on his behalf was present.
101. On 31 May 2006, the Trust's solicitors wrote to Dr Chan's solicitors informing them that a further meeting of the Disciplinary Panel would take place on 7 June 2006, "to conclude the considerations of the Inquiry Panel's recommendations under Part 2 of their Inquiry report, having regard to any final points of mitigation which your client may wish to make". They enclosed a transcript of the Panel's interviews, and stated that he would have the opportunity to put any final points in mitigation at the re-convened meeting.
102. The reconvened meeting of the Disciplinary Panel did not proceed as indicated by the Trust's solicitors. The chairman stated that the purpose of the meeting was to inform Dr Chan of their decision. Dr Chan attempted to put further documentation before them, consisting of his further statement commenting on the interviews and the possibility of his continuing to work in the Trust. The chairman said that they had taken everything into account that they felt required for a decision. Dr Goodier, who was representing Dr Chan, said:

"Get the decision underway first, and then …"

He was interrupted by Dr Chan, who made oral representations until stopped by the chairman, who repeated that the Panel had sufficient evidence to make their decision. He said that the decision was summary dismissal with immediate effect. He referred to Dr Goodier's proposal that Dr Chan work in a more structured environment, and said that the Panel had concluded that it was unworkable; and he explained why that conclusion had been reached. Dr Chan was then escorted off the Trust premises.

103. The Trust's letter of dismissal dated 7 June 2006 stated that Dr Chan was summarily dismissed for fundamentally breaching his contract of employment. It asserted that the proposal that he move departments was unworkable.
104. By solicitor's letter dated 19 June 2006 Dr Chan gave notice of his intention to appeal his purported dismissal and the decision to make that dismissal summary using the Trust's internal appeal procedures without prejudice to any rights he had to appeal to the Secretary of State pursuant to Paragraph 190 and without prejudice to his rights to seek injunctive relief and/or a declaration or such other relief as appropriate to prevent the Trust from dismissing him without notice.
105. By letter dated 26 June 2006 Dr Chan's solicitors wrote to the Secretary of State for Health attempting to exercise paragraph 190 appeal rights against the Trust's purported dismissal on the grounds that the Trust were not entitled summarily to dismiss him.
106. As mentioned above, by letter dated 24 July 2006 the Officer of the Solicitor on behalf of the Department for Health informed Dr Chan's solicitors that it was of the view that Dr Chan was not entitled to a paragraph 190 appeal because such a provision was not provided for in his contract and because paragraph 190 appeal rights did not apply to cases of summary dismissal.
107. Prior to the hearing of the internal Trust appeal Dr Chan's solicitors by letter dated 8 August 2006 informed the Trust that High Court proceedings were being drafted seeking declarations that Dr Chan's contract of employment entitled him to paragraph 190 appeal rights and that the purported summary dismissal of Dr Chan was a nullity and of no effect and proposed a stay of the internal appeal pending the outcome of Dr Chan's applications for declarations. The Trust declined to stay the internal appeal.
108. The Trust put in a statement of case in respect of the appeal dated 7 September 2006, supporting the decision of the Disciplinary Panel.
109. The hearing of Dr Chan's appeal against dismissal using the Trust's internal appeal procedure was heard on 21 September 2006. The Trust's appeal Panel was chaired by Ms Gail Beer (the Trust's Director of Operations) who sat with Professor Sir Nicholas Wright (Warden, Queen Mary's School of Medicine and Dentistry) with human resources advice provided by Ms Deborah O'Dea (Director of Human Resources at St Mary's Hospital NHS Trust) ("the Trust Appeal Panel"). Dr Chan attended and was represented by David Goodier. The Trust's case was put by Mr Goulston (the Chair of the Trust Disciplinary Panel). He stated that the Trust Disciplinary Panel had been of the view that several of the charges found against Dr Chan demonstrated gross misconduct and relied upon paragraph 4 of the Management Statement of Case in support of the case that Dr Chan had committed acts that amounted to serious insubordination and bringing the Trust into disrepute. The Trust Appeal Panel heard representations on behalf of Dr Chan and evidence from Professor Jo Martin.
110. The Trust Appeal Panel gave its decision to dismiss the appeal by letter dated 18 October 2006. The Trust Appeal Panel found that "given the gravity of the findings of the HC(90)9 inquiry Panel, the Appeal Panel was not in any doubt that the Trust disciplinary Panel was entirely and properly right to arrive at a view that Dr Chan's actions were found to be of Gross Misconduct under the Trust's own policy; and that in all the circumstances summary dismissal was a reasonable management decision."
111. The Appeal Panel considered the Trust's solicitor's letter of 31 May 2006, in so far as it stated that Dr Chan would have a further opportunity to present mitigation, had been an oversight, and incorrect, since the transcript of the first meeting of the Disciplinary Panel showed that he had been told that their conclusions would be given at their final meeting. The Appeal Panel considered that Dr Chan had had every opportunity to present his case. In any event having seen the evidence he had proposed to put before the Disciplinary Panel on 7 June 2006, they did not believe that if any further points had been put on his behalf at the meeting this would have changed the outcome. So far as the future management of Dr Chan was concerned, they referred to the view of Professor Martin that the structured environment that had been put in place temporarily when Dr Chan returned to work was not sustainable. They concluded:

"It is difficult to see how much more any reasonable employer might do to try to bring someone found guilty of gross misconduct back into the workplace."

The Trust's disciplinary policy

112. Until at least 2005, the disciplinary policy of the Trust was contained in document BLT/POL/06602/HR, referred to as the 2002 Disciplinary Procedure. It applied to all staff, including non-medical staff. It applied to "matters concerning personal conduct and general work performance." However, cases of professional conduct or competence of non-training grades of medical staff employed by the Trust before 1 April 2003 were to be dealt with in accordance with the procedure in HC(90)9 or its replacement.
113. As mentioned above, following the issue of "Maintaining High Professional Standards in the Modern NHS" the Trust formulated a disciplinary policy to implement that circular, and there is an issue as to whether it was adopted by the Trust and therefore became effective in relation to those of its staff whose contracts of employment referred to it, or at least those of its staff whose contracts did not provide otherwise. The Trust's Core Policy was contained in document BLT/POL/06606/HR, which stated that it had been approved or adopted by the Policies Working Group and Chairman's action. It was expressly not incorporated into individual contracts of employment. Paragraph 5 stated:

"Matters relating to the conduct or competence of medical and dental staff employed by the Trust will, from 1^st June 2005 and in line with national requirements, be dealt with in accordance with Maintaining High Professional Standards in the Modern NHS. However, until adoption of the new arrangements by the Trust, the existing arrangements will continue to apply."

114. Document BLT/POL/04705/HR, entitled "Disciplinary Procedure for Medical and Dental Staff" ("the 2005 Disciplinary Procedure") did not bear any such express exclusion, and was clearly intended, when adopted, to be binding on the Trust and its medical staff. It stated that it implemented "Maintaining High Professional Standards in the Modern NHS". It included in its heading the following:

"Approval/Adopted: Clinical Advisory Board: 17 May 2005

Standing Medical Advisory Committee: 28 July 2005

Local Negotiating Committee: 6 September and 8 November 2005.

Policy Working Group: 18 October 2005."

115. Paragraph 2 was as follows:

"The new arrangements replace the current disciplinary procedures enshrined in HC(90)9, as implemented by the Trust policy document [insert title/reference]. The new arrangements also replace the provisions in HC(82)13 for Special Professional Panels (the "Three Wise Men"). The right of appeal to the Secretary of State held by certain practitioners under paragraph 190 of their terms and conditions of service is now lost. This Policy also replaces the previous Trust Disciplinary Procedure for Non-Training Grade Medical and Dental Staff and Policy for suspension of Medical Staff."

116. The minutes of the meeting of the Clinical Advisory Board of 17 May 2005 evidence that Dr Gutteridge presented the new disciplinary procedures as being introduced from 1 June 2005, replacing HC(90)9. He said that there would be no appeals to the Secretary of State for dismissal from 1 June 2005. The minutes of the meeting of the Standing Medical Advisory Committee of 28 July 2005 show that the proposed new Disciplinary Procedure was discussed. One minor amendment was agreed, namely that the appeal Panel should include the chair of the LNC and the Warden or his nominated deputy. Paragraph 5.17 of the minutes stated:

"The policy would now go to the LNC for final consideration and adoption. …"

The document referred to in paragraph 114, in which there has been immaterial renumbering of paragraphs from those in the draft considered by the Standing Medical Advisory Committee, provides for the chair of the LNC to be a member of that Panel, but not the Warden.

117. The notes of the meeting of the LNC of 8 November 2005 confirm that the proposed new Disciplinary Procedure was discussed by it. Changes were suggested, all, or all but one, of which are to be found in the document referred to in paragraph 114.
118. The work of the LNC, including their discussion of the proposed new Disciplinary Procedure, was considered by the Medical Council on 10 November 2005. Its minutes do not mention a decision to accept the changes suggested by the LNC, or indeed a decision to reject any of them.
119. According to Ann Macintyre, the Director of Human Resources of the Trust, document BLT/POL/04705/HR was presented when in draft by Dr Gutteridge to the Medical Council, and there were open meetings at which it was discussed. The 2005 Disciplinary Procedure was adopted by the Trust following the meeting of the LNC on 8 November 2005, and was then placed on the Trust's intranet. The document was not signed, despite the place for a signature, which she said was part of the Department of Health template: it was not the practice of the Trust formally to sign off such documents. Parenthetically, document BLT/POL/06602/HR, the previous disciplinary policy was not signed either. The Policy Working Group would have agreed the proposed amendments some time during November 2005, no more than 2 weeks after the November meeting. Ms MacIntyre was not, however, a member of the Policy Working Group and did not attend its meetings. She said that the document would have been distributed to heads of departments, for cascading down, and have been posted on the intranet, with appropriate hyperlinks, in late November or in December 2005. It could also have been communicated through the Medical Council. She said that Dr Chan could have accessed the document on the intranet, using a PC at the hospital, or could have used his secretary's PC. While he was suspended he could not attend meetings of the Medical Council, but he was circulated with its minutes.
120. Mr Hendy understandably asked for disclosure of the minutes of the LNC for January 2006 and of any other meeting the Trust thought approved or adopted BLT/POL/04705/HR. I was subsequently told by Mr Moon that no relevant minutes had been found.

Discussion

121. The above account of the facts of this case is regrettably long, but I can at long last now set out my findings and conclusions. This case raises a similarly and regrettably long number of issues for decision.

The Disciplinary Procedure

122. The first issue I propose to address is whether the Trust replaced its 2002 Disciplinary Procedure with the 2005 Disciplinary Procedure. I find that it did. I see no reason to reject the evidence of Ms MacIntyre, other than the lack of a complete audit trail evidencing the adoption of the latter procedure. The document had been subject to only the most minor changes at the suggestion of the LNC, raising no issue of principle, and it is difficult to see why those changes should not have been accepted. It stated on its face that it had been approved and adopted. The Trust was already, in November 2005, late with the introduction of its new procedures required to implement the circular Maintaining High Professional Standards in the Modern NHS, and it is improbable that it would have simply left the new procedure in unadopted limbo, where presumably, if not adopted as Ms MacIntyre testified, it still remains. I accept that the 2005 Disciplinary Procedure was posted on the Trust's intranet on its adoption.

The effect of Dr Chan's original contract of employment

123. As set out in paragraph 11 above, Dr Chan's appointment letter stated that the terms and conditions offered were equivalent to the "Terms and Conditions of Service of Hospital Medical and Dental Staff (England and Wales) and the General Whitley Council Conditions of Service … as amended from time to time". In apparent contrast, the letter referred to paragraphs 190 to 198 of those terms and conditions without the last 6 words.
124. I think that both parties accept that the words "equivalent to" in the letter were surplusage: the terms and conditions incorporated were those specified in the letter; and in any event this is the only sensible interpretation of the letter. Mr Moon submitted that the terms of the contract of employment contained in the letter were expressly subject to subsequent change with any change in the Terms and Conditions to which it referred. Mr Hendy accepted that the words "as amended from time to time" referred to, and were apt to incorporate, future changes, but submitted that the difference in wording in relation to paragraphs 190 to 198 was significant, and meant that future changes were not incorporated in the contract.
125. In my judgment, it would be wrong to place significance, in a letter of this kind, the drafting of which is less than perfect (I refer to the inappropriate use of "equivalent to"), on this difference in wording. The letter indicated an intention for the terms of employment to be kept abreast of changes in the Terms and Conditions referred to. It would be odd if some of those Terms and Conditions remained frozen in time, while others were amended. If nothing else, this would lead to the real possibility of inconsistencies between those referred to in and incorporated by the second paragraph of the letter and paragraphs 190 to 198 of the then Terms and Conditions incorporated by the later paragraph.
126. This did not mean, however, that the Trust could unilaterally alter those terms. The terms incorporated were standard terms, determined nationally.
127. Those terms were amended, as a result (or as part of) Maintaining High Professional Standards in the Modern NHS. Version 6 of the Terms and Conditions of Service of Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales), dating from 1 June 2005, provides:

"Disciplinary Procedures

"189a. In England, wherever possible, any issues relating to conduct and capability should be identified and resolved without recourse to formal procedures. However, should an employing authority consider that a practitioner's conduct and capability may be in breach of the authority's code of conduct, or that the practitioner's professional competence has been called into question, the matter will be resolved through the authority's disciplinary or capability procedures (which will be consistent with the 'Maintaining High Professional Standards in Modern NHS' framework), subject to the appeal arrangements set out in those procedures. Any allegations of misconduct against, or capability concerns about, a doctor or dentist in a recognised training grade should be considered initially as a training issue and dealt with via the educational supervisor with close involvement of the postgraduate dean from the outset."

128. Paragraph 190 of those terms and conditions was expressed to apply to Wales only, and stated that it did not apply to England from 17 February 2005.
129. It follows that if Dr Chan continued to be employed under his original contract, he nonetheless ceased to have a contractual right of appeal to the Minister under paragraph 190.
130. In my judgment, the loss of the right of appeal to the Secretary of State was not such a fundamental change and was not so onerous or unusual as to require explicit and clear notification to Dr Chan. In other words, the change was not analogous to the contract term considered in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433.

Did Dr Chan accept the new form of contract?

131. My conclusion on the previous issue renders this issue less important. Two subsidiary issues have been raised under the present head: were the three "sticking points" resolved? Was Dr Chan's job plan agreed?
132. The first is, I think, something of a red herring. The three sticking points were generic to the consultant radiologists, and there was nothing to prevent an individual consultant accepting the new form of contract if he was willing to concede any outstanding sticking points.
133. As to whether they were resolved, I was impressed by the evidence of Dr Gutteridge, whom I noted at the conclusion of his evidence to be a relaxed and impressive witness who was obviously honest. However, I am driven to the conclusion that he has over-stated the outcome of his meeting at the end of May or the beginning of June referred to above. His letter of 5 October 2004, admittedly written some time after the meeting, does not purport to confirm an agreement; and the evidence of Dr Renfrew is that no agreement was reached.
134. However, as stated above, the fact that no general agreement had been reached did not preclude individual agreements between the Trust and consultants, which is what the letter of 5 October envisaged. From the end of May 2004, so far as the documentation is concerned, both Dr Chan and the Trust acted as if he had accepted the new contract terms and there was no outstanding dispute. The Trust paid, or at least continued to pay, salary that was known to be based on acceptance of the new contract. Dr Chan did not reject that payment, or the payment of back-pay, or qualify his acceptance of it. Nor did he request any additional payment for the PAs he said he was working in addition to the 12 for which he was paid.
135. I have to say that the position of a consultant who accepted his back pay and increased salary payable only if he accepted the new contract, but who disputes that he did so, is not very attractive. Dr Matson well understood, when asked about it, the difficulty of accepting back pay and on-going salary based on acceptance of the new contract, and a failure to take issue with the letter of 13 July 2004 sent to him (in the same terms as the letter of that date to Dr Chan), while asserting that he had not accepted the new contract.
136. Be that as it may, the documents before me show that Dr Chan was a man quick to respond in strong terms to letters or emails with which he disagreed; yet he did not respond at any time to the letter of 13 July 2004, which referred to the job plan review and to Ms Macintyre's understanding that he had accepted the offer of the new contract. In contrast with the period before the meeting with Dr Gutteridge, there is no email or letter from Dr Chan evidencing any continuing dispute as to his job plan or the three sticking points or his contract. To the contrary, he continued to work until January 2005 and he was paid on the basis of 12 PAs. Dr Chan did not pursue the appeal process for resolving his issues as to his job plan. Again, I consider that he would certainly have done so if it had been outstanding. It appears from Ms Murfitt's email of 8 October 2004 that four neuro-radiologists did appeal.
137. Dr Chan's headings on his job plans in his appraisal folder, which was signed off by him, do not indicate an on-going dispute; nor does the remainder of the folder. He said that the second of these job plans, showing 12 PAs, was imposed on him by the Trust; but that is not inconsistent with his having accepted it, and I did not understand Dr Matson to dispute that it had been accepted, albeit reluctantly. I accept Professor Martin's evidence that when she considered and approved Dr Chan's appraisal, he did not indicate that the job plans were not agreed, and that she did not know that he was disputing them until he gave evidence.
138. In fact, although this was unfortunately not referred to during the hearing, it is identical to the "suggested" job plan offered in the Trust's solicitors' letter of 11 July 2005, setting out the terms for his return to work pending the result of the Inquiry, which, as varied in a letter of 8 August 2005, were accepted by Dr Chan by his solicitors' letter of 10 August 2005.
139. Dr Chan is a man of considerable intelligence and his emails confirm that he understood the significance of the agreement or lack of agreement of his job plan and the resolution or lack of it of the three "sticking points". I do not believe he would have stated, in his witness statement in the inquiry (confirmed by him in his oral evidence) and in the pleading prepared on his instructions that he had accepted the new contract if those matters had remained in dispute, albeit that the date of his acceptance was wrong. There is no satisfactory explanation of his original statements that he had accepted the new contract: his statement in evidence to me that he had accepted the new contract in the sense that he was being paid under it is not a reasonable explanation from such an intelligent man. He accepted that the information in his Particulars of Claim came from him, but stated that he did not realise the implications of the agreement. That statement does not address whether or not paragraph 40 of his pleading was true.
140. Much of the evidence on this issue confused the issue whether Dr Chan was in fact working more than 12 PAs with the issue whether he was employed to work more than 12 PAs. Many professionals work more than they are required by their contracts of employment to work. In fact Dr Chan continued to work for the Trust between July 2004 and February 2005, and between August 2005 and his ultimate dismissal. In my judgment, a reasonable objective observer would have concluded that he did so on the terms of the new contract. In any event, from August 2005 there was an agreed job plan. It may be that no one appreciated the possible significance of its agreement, since at the time Dr Chan's position was that he was employed under the new contract terms, but that is immaterial.
141. I therefore conclude that Dr Chan was employed under the new contract, at least from August 2005. It is common ground that it did not confer any right to an appeal to the Secretary of State. I see no basis for a finding that the Trust is precluded from relying on the new contract (or on its changed disciplinary procedures) by any failure to advise Dr Chan of them: c.f. Crossley v Faithful & Gould [2004] EWCA Civ 293, [2004] 4 All ER 447. In any event, the change had been signalled in Annex A to the Trust's letter of 15 August 2003 referred to at paragraph 15 above.

Was Dr Chan's conduct gross misconduct?

142. I think that I understand why Mr Hendy submitted that I do not have to make a decision as to whether or not Dr Chan's conduct, as found by the Inquiry Panel, constituted gross misconduct. Nonetheless, for reasons that will be apparent, I consider that it is a question that I have to address.
143. I state at once that no one has sought to diminish Dr Chan's abilities as a clinician and as a teacher. It appears from the findings of the Inquiry Panel that his problem was his inability to give any respect to the views and actions of those in management with whom he disagreed, and his failure or inability to appreciate or take account of the effects of his actions on his colleagues.
144. There was some debate before me, as there had been before the Appeal Panel, as to whether the Inquiry Panel found Dr Chan guilty of acts that should be classified as insubordination or action calculated or likely to bring the Trust into disrepute. These were examples of gross misconduct which may lead to summary dismissal set out in the 2002 Disciplinary Procedure; but they were only examples, and gross misconduct that is not properly to be described as falling within one of the examples given would nonetheless be gross misconduct. Even the expression gross misconduct requires to be used with care. The crucial question is whether the conduct of an employee is a repudiatory breach of his contract of employment, and the words gross misconduct are a convenient shorthand for such conduct.
145. In my judgment, the allegations which the Inquiry Panel found proved did constitute gross misconduct. His conduct was destructive of any trust and confidence between the management of the Trust and himself, and indeed it would seem to have been deliberately so. Paragraphs 74 to 93 above speak for themselves. The findings of the Inquiry Panel were aggravated by the finding that they "saw no evidence during the Inquiry that Dr Chan had learnt anything from his experiences during the investigation or the Inquiry process." If it is necessary to consider whether his conduct amounted to insubordination or action calculated or likely to bring the Trust into disrepute, I would say that it was. His conduct in relation to the visit of the Royal College was calculated or likely to bring the Trust into disrepute. That it did not do so was because the College did not accept his allegations. His conduct to those in management, Drs Vinnicombe, Evanson and Murfitt, went beyond disobedience and amounted to insubordination. It rendered it impossible for them to work with him, or at least reasonably to require them to do so.
146. Dr Chan himself referred to the seriousness of the findings. He said to the Disciplinary Panel:

"I would like the Panel to know that I fully accept the HC(90)9 report and in particular the criticisms that have been levelled at me in relation to some of my very serious misbehaviour, albeit under mitigating circumstances."

The mitigating circumstances were said to be his feeling that he was being sidelined by management.

147. I have not ignored the finding of the Inquiry Panel that the lack of effective management contributed to the problems of Dr Chan's conduct. However, he is an intelligent professional, who should not require effective management in order to appreciate what is destructive of his relationships with his colleagues in management and the boundaries of acceptable conduct. In any event, I am doubtful whether the lack of effective management can be other than a background factor in a case such as the present.
148. Furthermore, in my judgment the Court should be cautious before interfering with the assessment of the seriousness of Dr Chan's conduct made by the internal Appeal Panel, including as it did an eminent non-executive director of the Trust.
149. I add that I was not moved to diminish the seriousness of the Inquiry Panel's findings, or the appropriateness of the Appeal Panel's decision, by Dr Chan's assertions that the disciplinary procedure against him was instigated by an ulterior and improper motive. In paragraph 18 of his first witness statement, he said:

"… it was my vocal insistence that the Trust was putting economy before patient safety and my refusal to be placidly managed that, I believe, formed the Trust's motivation for bringing the disciplinary proceedings."

In cross-examination, he was unable to name the person or persons who were motivated by his "vocal insistence that the Trust was putting economy before patient safety" to cause the disciplinary proceedings to be brought.

Was it open to the Trust to rely on the findings of the Inquiry Panel as constituting gross misconduct?

150. In his closing submissions to the Inquiry Panel counsel for the Trust sought a finding that Dr Chan had been guilty of gross misconduct. The Panel made no finding that he had been guilty of gross misconduct. In consequence, it was submitted on his behalf that it was not open to the Trust to contend that he had been found guilty of gross misconduct.
151. The terms of reference of the Inquiry, which constituted the Panel's mandate, did not require or authorise the Panel to determine whether the allegations proved amounted to gross misconduct, an expression that does not appear in them. Nor did they require or authorise the Panel to decide whether Dr Chan should be summarily dismissed. They were to decide whether allegations had been proved, whether Dr Chan was at fault in respect of his performance or behaviour, and to make recommendations, which by their nature are not binding, on the action to be taken by the Trust. The allegations as a whole, if proved, were clearly sufficient to amount to gross misconduct, as Dr Chan appreciated. I do not think it a sensible interpretation of the terms of reference to conclude that they excluded the possibility of a conclusion that the allegations proved amounted to gross misconduct, and Mr Hendy did not so argue. The Panel did not make an express finding of gross misconduct; but nor did they expressly reject the contention of the Trust that the allegations proved did constitute gross misconduct. It seems to me, therefore, that this question was left open. It follows that the Trust could have relied on the findings as establishing gross misconduct, or to put it less emotively, repudiatory conduct inconsistent with the a relationship of trust and confidence.

Was the Trust precluded from dismissing Dr Chan summarily by a failure to alert him to the possibility of its doing so or by unfairness or other defect in its disciplinary procedures?

152. Dr Chan complains that although he was made aware that his dismissal was being considered by the Trust, he was not given notice that his summary dismissal was being considered. "Dismissal" is ambiguous: it may be summary, but termination by the employer by serving a contractual notice on the employee is also referred to as dismissal. The original meaning of dismissal was termination without notice, i.e. summary dismissal, and I think that this remains the primary meaning. Thus, Bowers in A Practical Approach to Employment Law, 7^th edition, states:

"At common law there were just two sorts of termination of employment which might found an action for wrongful dismissal:

(a) a sending away by his employer; and

(b) a radical change of the employer's terms and conditions which amounted to repudiatory breach of his contract …"

Statute however has enlarged the meaning of dismissal. Following earlier provisions, section 95 of the Employment Rights Act 1996 includes termination of a contract of employment by the employer with notice in the definition of dismissal.

153. In my judgment, good practice required the Trust to have expressly warned Dr Chan that this might be summary dismissal. Nonetheless, it seems to me that Dr Chan, who was legally represented, should have appreciated the possibility of his summary dismissal, by reason of the seriousness of the findings of the Inquiry Panel. It appears that the description of his conduct as insubordination and bringing the Trust into disrepute had not been advanced by the Trust before the Disciplinary Panel made its decision, and such conduct is referred to in its disciplinary policy as gross misconduct. But the description of his conduct was not an essential element of the charges against him, and the policy gives those kinds of conduct as only examples of such misconduct. The question was whether the misconduct found by the Inquiry Panel amounted to a repudiatory breach of his contract of employment. As I have stated above, in my judgment it did.
154. Having by its solicitors informed Dr Chan that he would have another opportunity to put mitigation to the Disciplinary Panel at their last hearing, he should have been given that opportunity. In any event, he should have been permitted to address the information obtained by the Panel from their interviews following their first meeting. To that extent, the initial disciplinary procedure was defective.
155. In the absence of authority to the contrary, I would hold that this defect was however cured by the hearing before the Appeal Panel. There are a number of reasons for this. First, no procedural complaint is made in relation to the hearing by the Appeal Panel. Secondly, the subject of the additional mitigation was not whether Dr Chan had committed the acts of which the Trust complained: the Inquiry Panel had made findings on this that both parties accepted. The additional mitigation went to the question whether, notwithstanding Dr Chan's conduct, he should remain working in the Trust, in the radiology department. Thus the issue to which the additional mitigation went was not whether the Trust was not whether Dr Chan had been guilty of the conduct of which the Trust complained, or whether it was entitled to dismiss him (leaving aside the question whether it should do so by notice or summarily, which was not addressed until the hearing of the appeal, but was then addressed), but whether it should exercise its right to dismiss him. This was very much a management decision; it should be borne in mind that neither the Disciplinary Panel nor the Appeal Panel pretended to be independent of the Trust. Dr Chan's recourse to independent determination of his claims was and is to the Employment Tribunal and in these proceedings. Thirdly, the Appeal Panel found that the additional material that Dr Chan would have put before the Disciplinary Panel if given the opportunity would have made no difference to the outcome: a conclusion that follows from their consideration of that material and their upholding of the decision of the Disciplinary Panel. More importantly, he was able to put that material before the Trust before the final decision was made. Lastly, if it is relevant, in my judgment the Trust did have the right summarily to dismiss Dr Chan on the basis of the Inquiry Panel's findings.
156. There is no absolute rule that a breach of natural justice by a disciplinary tribunal invalidates both its procedure and decision and those of an appeal tribunal: Calvin v Carr [1979] 2 All ER 440. This is not a case like Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2006] ICR 425; [2006] IRLR 100; [2006] Lloyd's Rep Med 199; [2006] 87 BMLR 46; [2005] EWHC 2407, where the employee had been deprived of the opportunity to counter the allegations against him. For the reasons I have set out, I do not consider that the Trust was precluded from dismissing Dr Chan by reason of any defect in the proceedings of the Disciplinary Panel.
157. It follows from my findings that Dr Chan was not wrongfully deprived of an appeal to the Secretary of State. He had no right to such an appeal, for the reasons given in the Department's Solicitor's letter. Even if he had been wrongfully summarily dismissed, and had a contractual entitlement to an appeal under HC(90)9, he would not have been entitled to exercise it. The right of appeal would have been inapplicable, there being no applicable period of notice. The remedy in such circumstances is in damages for wrongful dismissal.

Declaratory relief

158. If Dr Chan had succeeded on all the issues before me, the question would have arisen whether the Court should make the declaration he seeks. The grant of a declaration is discretionary. Mr Hendy made it clear that if the declaration were granted, it would be expected that the Trust would permit Dr Chan to resume work as its employee, since if he had not himself repudiated his contract of employment the Trust did so by summarily dismissing him, and he has not accepted the repudiation. His employment, and his entitlement to his salary, would have continued and be continuing, irrespective of any other clinical work he has carried out since his dismissal. In other words, the grant of the declaration would be expected to have the same effect as the grant of an injunction.
159. I would not in any event have granted the declaration sought. The Court should at the least be cautious before granting a remedy that may be considered to require specific performance of a contract of employment. In my judgment, the conduct of Dr Chan found by the Inquiry Panel alone was such that it would be wholly insensitive and unreasonable for the Court to require the management of the Trust to resume working with him. In addition, I accept the evidence of Professor Martin, who said:

"If Dr Chan were now to be reinstated to the Trust's employment for any reason, and based on my previous experience, I do not think that it would be possible for him to return to any duties in the department, without this causing further significant disruption. Given the overall problems we have had with Dr Chan, I do not consider that there would be sufficient trust and confidence in the relationship for him to be managed successfully."

In cross-examination, she said:

"Chan had several run-ins; he is very passionate and vocal and committed to what he believes to be right and has a very confrontational style to get what he wants. That can be bruising to those involved. The brief period when I line managed him was not conflict free."

In re-examination, she said:

"It would be very difficult [to have him back] because of his confrontational style which is stressing. … His very strong opinions expressed very strongly make it difficult, and I don't want to go back to being shouted at and humiliated."

Conclusion

160. For the reasons set out above, I respond to the issues set out at the beginning of my judgment as follows:

(a) The Trust was entitled to dismiss Dr Chan for gross misconduct.

(b) He was not entitled to a paragraph 190 appeal, both because of his summary dismissal and because he had no contractual entitlement to it at the date of his dismissal.

(c) I would not in any event grant declaratory relief.

(d) Dr Chan had accepted the new form of consultant contract.

(e) In any event, the Trust's disciplinary procedures at the date of his dismissal did not entitle him to an appeal to the Secretary of State.

(f) Dr Chan should have appreciated throughout the possibility of his summary dismissal, by reason of the seriousness of his conduct. In any event, he was able to address summary dismissal before the Appeal Panel.

(g) Does not arise.

161. For the reasons set out above, the claim will be dismissed.
162. I cannot leave this judgment without expressing concern at the costs involved in the disciplinary proceedings against Dr Chan and this litigation, a regret that is independent of my conclusions. I have no doubt that the total costs have substantially exceeded £1 million. Whatever the rights or wrongs, given that a hospital's funds are necessarily limited, and legal costs and clinician's time are presumably at the expense of medical expenditure and clinical care, it is essential that more expeditious and efficient procedures are adopted and followed.