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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/11//2018

Mr Justice Swift:

A. Introduction

1. The Claimant is employed by the Defendant NHS Foundation Trust as a Consultant Radiologist pursuant to the terms and conditions referred to and set out in a contract dated 6 May 2014. He first commenced work on 5 November 2001. As at 2001 the Claimant's employer was the University Hospital of South Manchester NHS Trust. In 2006 the University Hospital of South Manchester became a Foundation Trust. On 1 October 2017 the Manchester University NHS Foundation Trust was established as a result of the merger of the South Manchester University Hospitals NHS Foundation Trust and the Central Manchester University Hospitals NHS Foundation Trust.
2. From the outset of his employment, the Claimant's work fell into two parts, split 50/50. One part was in the Trust's Breast Service. The Breast Service is based at the Nightingale Centre (at the Wythenshawe Hospital) which is a purpose-built breast cancer prevention and treatment centre. The responsibilities of the Breast Service cover the whole of the Greater Manchester area, and comprise the screening programme for Greater Manchester, which is run from the Nightingale Centre; the provision of counselling services to those with a high genetic risk of breast cancer; and referral work including MRI screening and a biopsy service. As a Consultant Radiologist in the Breast Service, the Claimant's responsibilities covered breast screening mammogram reporting (assessing mammograms to determine if any follow-up steps needed to be taken), working in assessment clinics seeing patients who had been recalled following screening appointments, and working in symptomatic clinics treating patients referred by GPs. The work at the clinics could include performing breast MRI scans and undertaking image-guided biopsies. In these proceedings this clinic work has been referred to generally as "assessment work". The other part of the Claimant's work has been described as "general radiology". This is performed in the Trust's General Radiology Directorate and includes what has been described as "plain film reading" and nuclear medicine (generically, the use of radioactive substances for the purposes of diagnosis and treatment). Under the terms of the letter of appointment, the Claimant was required to undertake such work as was set out in his Job Plan. The Job Plan was to be reviewed from time to time in accordance with the arrangements set out in the standard terms and conditions for NHS Consultants in England which were referred to in the letter of appointment and which formed part of the Claimant's terms and conditions of employment.
3. In these proceedings the Claimant contends that the Trust has acted in breach of his terms and conditions of employment in various ways. The material contractual terms are at clauses 3 and 17 of the May 2004 contract. Clause 3 is headed "General Mutual Obligations". In substance it is a statement of the well-known employment law trust and confidence obligation. As formulated at clause 3, both parties agreed (a) to cooperate with each other; (b) to maintain goodwill; and (c) "to carry out our respective obligations" in connection with agreeing and operating a job plan, implementing appraisal arrangements, and following the Trust's policies. Clause 17 of the contract is headed "Disciplinary Matters", and provides as follows.

"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 procedures 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."

4. The breaches of contract alleged span the period from November 2015 to the beginning of 2018. The history of the matter reaches back further still to 2008 and comprises various narrative strands. The first strand is complaints about the Claimant's practice which were made in June 2008. Two of the complaints concerned the Claimant's work at the Nightingale Centre, a third concerned his general radiology work. The matters complained of were serious of themselves, but were also regarded as symptomatic of a pattern of poor performance and behaviour over a number of years. An MHPS investigation was commenced.
5. The abbreviation "MHPS" refers to the document "Maintaining High Professional Standards in the Modern NHS", issued by the Department of Health, in part in 2003, and in further part in 2005. For NHS Trusts, the MHPS was the subject of Directions by the Secretary of State for Health under the power that then existed under section 17 of the National Health Service Act 1977, and now exists under the National Health Service Act 2006. By paragraph 16(5) of Schedule 2 to the National Health Service and Community Care Act 1990 (and now by paragraph 25 of Schedule 4 to the National Health Service Act 2006), NHS Trusts must act in accordance with such directions when exercising their powers in connection with the employment of staff. The Secretary of State made two relevant Directions, one in 2003 which related to MHPS Parts I and II, and another in 2005 which concerned the whole MHPS. The 2005 Direction required NHS Trusts "to comply" with the MHPS, and required them to "implement" the MHPS by 1 June 2005. The independent regulator for NHS Foundation Trusts (Monitor) has issued the MHPS as advice to those Trusts. NHS Foundation Trusts are required to have regard to guidance issued by Monitor.
6. Pending completion of the MHPS investigation, practice restrictions were placed on the Claimant. Such restrictions are envisaged under the MHPS where (for example) they are necessary to protect the interests of patients or other staff. The restrictions imposed on the Claimant affected both his general radiology work, and his work in the Breast Service. So far as the latter was concerned, the Claimant was restricted to mammogram reporting, providing reports and giving advice to clinic colleagues, and research education and training work. As part of the MHPS investigation the Trust commissioned a review of the Claimant's neuro MR scan reports by a Consultant Neuro-Radiologist from a nearby NHS Foundation Trust. That report was provided in January 2009: it made criticisms of the Claimant's "reporting style" but concluded that the Claimant's overall performance was satisfactory. It appears that during 2009 the decision was taken that the concerns about the Claimant's work in the Breast Service could be addressed by a local performance improvement plan. However, by June 2010 that plan had only been partially agreed. The partial agreement was to the effect that the Claimant would recommence breast MRI scan work, double reporting with another consultant. But the remainder of the improvement plan was outstanding. Until the improvement plan had been put into effect the Claimant's job plan could not be agreed. Overall, the Claimant remained subject to practice restrictions, and that state of affairs persisted for a considerable time.
7. The second strand to the background narrative is the involvement of Public Health England in the form of its National Screening Quality Assurance programme ("QA"). QA is part of a process of checking that national standards are met, and ensuring that screening programmes are safe and effective. The Breast Service receives QA visits every three years. A QA visit took place in 2010, and the report that followed contained a recommendation that "… all radiologists need to perform a dedicated assessment clinic even if this is on alternate weeks to maintain their numbers and competence". This recommendation was directed to the Claimant's circumstance, and the fact that since June 2008 he had not undertaken assessment work but only film reading work. The QA reviewer regarded this as outside the best standards practice guidance, and a matter of concern. Put briefly, not doing assessment work risked undermining the Claimant's performance as a film reader. By the time of the next QA review in 2013, this state of affairs had not been addressed. A further report dated 3 October 2013 contained the following recommendation.

"All radiologists involved in film reading should also perform assessment. This is an outstanding recommendation from 2010 and should be addressed within six months."

8. The third narrative strand relates to the Claimant's health. The Claimant suffers from ankylosing spondylitis, a form of arthritis affecting the joints of the spine. This is a chronic condition that gives rise to considerable pain and discomfort, and also fatigue. In 2009 and 2010, when the Claimant was on restricted duties, occupational health reports stated that the Claimant was fit to undertake those duties subject to the need for adjustment to his workstation and the provision of an appropriate chair. In January 2011 the Trust requested a further occupational health report in connection with the efforts then being made to reintroduce the Claimant to the full range of duties and agree a job plan. The report was provided in February 2011 and was to the effect that when it came to assessment work in the Breast Service, this would result in the claimant experiencing "increased pain and discomfort" which "… would potentially interfere with his effectiveness in carrying out such clinical tasks". The occupational health opinion was that any requirement on the Claimant to undertake ultrasound guided core biopsies would "need to be modified/restricted on medical grounds". A further occupational health report in November 2014 concluded that while the Claimant was fit to undertake the (restricted) duties he was then undertaking, he would struggle to do work that required him to bend or rotate his upper body and hold static postures for long periods of time. In other words, the Claimant had only a limited ability to undertake the full range of assessment work.
9. There is no need for the purposes of this judgment to set out any detailed narrative of events during 2011 – 2015. Suffice it to say that by September 2015 the Claimant had not returned to full duties. This was the combined effect of delay in recommencing the breast MRI scan work, delay in agreeing the job plan, concerns raised as to whether the 2013 QA report had been correct to state that all consultant radiologists in the Breast Service ought to undertake a full range of assessment work, and concerns, from time to time as to the extent of the claimant's physical capability to undertake the full range of assessment work. I cannot tell whether the Trust or the Claimant bears the bulk of responsibility for this state of affairs, or whether it was simply the case that between them the parties allowed matters to progress at a slow pace. The documentary evidence from this time is incomplete. But in any event, resolving such matters is not necessary for the purposes of determining the issues in these proceedings.

B. The events covered in the proceedings

10. These proceedings concern events since the beginning of November 2015. By an undated letter to the Claimant's solicitor, most likely sent on 2 November 2015, the Trust identified a number of issues relating to the Claimant's employment. The first was that the Claimant's job plan had not yet been agreed. During 2015 the Claimant had sought to have this dealt with through the Trust's general grievance procedure. In this November 2015 letter the Trust stated that the job plan would be resolved via the specific mediation process set out in Schedule 4 of the Claimant's terms and conditions of employment. The November 2015 letter then set out "concerns and allegations regarding" the Claimant's "clinical practice", which were as follows.

"a. Since 2010 Dr Jain has been in breach of Breast Screening QA recommendations in that he continues to undertake mammographic screening reporting, but is not participating fully in breast assessment clinics.

b. Dr. Jain's film reading performance is poor when considered against peers within the region, as he has a very high recall rate and a poor positive predictive value (PPV). These results have been provided to the Trust from Regional QA.

c. A serious untoward incident (SUI) following a missed cancer screening mammogram has been the subject of an external review, and this raises concerns within the Trust

d. There are ongoing issues concerning Dr. Jain's interpersonal and communication style regarding his relationships and approach to his line managers."

The letter proposed that these concerns would be investigated and addressed under Part IV of the MHPS guideline procedures for dealing with issues of capability, and that the Trust would write to the Claimant separately about this process. Lastly, the November 2015 letter noted that the Claimant had sought adjustments to his work on health grounds, which would entail a significant reduction in his workload. The letter stated that an occupational health report would be sought, and asked the Claimant to cooperate with the referral process.

11. On 5 November 2015 Dr Richard Levy (the Trust's Divisional Medical Director for Scheduled Care) wrote to the Claimant, explaining that he would be the Case Manager for the MHPS Part IV process. He told the Claimant that Lester Barr (the Associate Hospital Dean for Clinic Skills) would be the Case Investigator. Dr Levy went on to state as follows.

"Given the nature of the matter being investigated, advice has been sought from NCAS and I need to inform you that I am restricting your practice with immediate effect in line with Section II of Maintaining High Professional Standards in the Modern NHS. You are to confine your practice to plain film reporting within the General Radiology Department and not undertake any clinical practice in relation to Breast Radiology. …"

The letter enclosed the terms of reference for the MHPS investigation, the October 2013 QA report, and a copy of a "Concise Root Cause Analysis Investigation Report". This last document related to the third element of the MHPS investigation (at c. above) – which in fact had not arisen from a serious untoward incident report, but instead from the Root Cause Analysis Investigation Report. The letter made clear that although Dr. Levy had hoped to meet the Claimant to explain matters rather than write to him about them, he understood from a letter written by the Claimant's solicitors (dated 3 November 2015) that the Claimant was unwilling to meet.

12. In the most outline of sketches, the events following November 2015 were as follows. As occupational health report was completed on 12 January 2016. The overall conclusion was that there was "… no compelling medical reason why [the Claimant] cannot re-skill and start to undertake assessments as described above". What had been described in that report was to the effect that the Claimant would be physically capable of assessment clinic work so long as it was possible for him to have sufficient breaks to allow him to "move, stand and stretch". The investigation under Part IV of the MHPS proceeded very slowly. There were persistent difficulties in arranging a meeting between the Claimant and Mr. Barr. By October 2016, although Mr. Barr had conducted investigation meetings with all other relevant people, he had not been able to have any substantive discussion with the Claimant. By this time the Claimant's participation was in large part by solicitors' letter, and that correspondence was becoming attritional. At the beginning of October 2016 Andy Pickersgill succeeded Dr Levy as Case Manager. In an attempt to address what must have seemed like a stalemate, he decided to put the MHPS investigation on hold pending "without prejudice" discussions. I have been told that those discussions included a proposal by the Trust of terms on which the Claimant would return to work in the Breast Service. Given that the Claimant had not undertaken the full range of work in the Breast Service since 2008, the proposal included significant re-training. The without prejudice discussion period lasted until the end of 2016, but did not resolve matters.
13. On 13 February 2016 the Claimant's solicitors wrote a pre-action letter to the effect that the Claimant's continued "exclusion" from breast radiology work was unlawful, and seeking an injunction that would have required the Trust to permit the Claimant to resume this work. The Trust's response to the letter before claim (through solicitors on 27 February 2016) proposed a route by which the Claimant could recommence Breast Service work. This route comprised two steps: first, the Trust would undertake an occupational health assessment to establish whether the Claimant was physically capable of undertaking the full range of Breast Service work as required by the 2013 QA report; second, if the assessment was positive the Trust would devise an action plan in conjunction with the Claimant and taking advice from NCAS, to facilitate the Claimant's "supervised reintegration into his work". On 8 March 2017, Mr. Pickersgill wrote to the Claimant with further details. These included a "stay" of the MHPS investigation that had started in November 2015, and proposal for mediation between the Claimant and the other consultant radiologists in the Breast Service as part of his planned reintegration. Mr. Pickersgill recognised that the practice restriction imposed in November 2015 would need to be varied so that a planned reintegration could take place. He suggested that he and the Claimant and the Claimant's representative should meet with others, including Drs Lim and Hutchison of the Breast Screening Service, to agree what should happen. Dr Lim is the Trust's Clinical Lead for Breast Imaging; Dr Hutchison is the Trust's Director of Screening. That meeting took place on 30 March 2017, and resulted in agreement on the following matters. First, that from 1 May 2017 the Claimant was to return to mammogram reading work, as a "third reader" – i.e. he would read films with Dr Lim and Dr Hutchison as a means of facilitating a return to work. Second, that any more general return to Breast Service work would be over a longer timetable and would depend on occupational health advice which would be informed by information from an independent radiologist about functional requirements of the work. Third, that there would be mediation involving the Claimant and the other consultant radiologists as part of the return to work. The mediation was to be undertaken by Ian Tegerdine, an experienced mediator.
14. Mr. Tegerdine's mediation took place over June and July 2017. It was not successful. His formal mediation report (provided in August 2017) included the following conclusion.

"9.3 The ability to achieve a safe team will depend on good working relationships being restored between Dr Jain and the other members of the team. In light of the strength of feeling against Dr Jain it would appear that relationships have irretrievably broken down and hence it is no longer possible for this group of people to work with Dr Jain. This being the case it would not be possible to achieve a safe team, due to the level of dysfunction, while the membership of the team remains unchanged."

15. In the meantime, the Trust had "temporarily suspended" the reintegration plan. The Claimant was told this in an email of 12 July 2017. The email stated that the decision had been taken because of concerns about the Claimant's "breast reading practice" raised by Dr Lim and Dr Hutchison. The Claimant's solicitors responded to this with a letter before claim dated 11 August 2017 which threatened proceedings for a declaration that the decision to suspend the reintegration plan was in breach of the agreement reached on 30 March 2017, and in breach of clause 17 of the Claimant's letter of appointment. A response followed, which disputed the matters set out in the letter before claim. However, proceedings were not commenced. At this time the Claimant was on sick leave (he had gone sick in July 2017 very shortly after the decision to suspend the reintegration plan). He remained on sick leave until the end of 2017, and was due to return to work on 2 January 2018.
16. Mr. Pickersgill wrote to the Claimant in anticipation of his return to work. The letter is undated but was probably written on or around 15 December 2018. In that letter Mr. Pickersgill confirmed that the "temporary suspension" of breast film reading duties remained in place. He went on to say that although the Trust was "committed to the principles of reintegration" it was "now apparent that there are fundamental issues that may impact on the Trust's ability to reintegrate [the Claimant] into the Breast team … that need to be investigated and addressed before any further action is taken". In those circumstances, Mr. Pickersgill went on to state the following.

"Effective working relationships … are fundamental to the successful and safe functioning of the service. … I consider I have no option but to commission an independent inquiry into the impact of the breakdown in relationships reported by Mr. Tegerdine on the delivery of safe patient care within the Nightingale Centre, including the feasibility of your re-integration in the Breast Radiology team. All the consultants within the Breast Radiology team, including Drs. Lim and Hutchison, have indicated that they feel unable to support your re-integration into the team or work with you in the future for a variety of reasons and clearly this needs to be addressed by the Trust.

I have therefore commissioned an external and independent investigator, Mrs. Catherine Lockett who is Managing Director of Clearlink HR to undertake the inquiry. The terms of reference are attached for your information …

There is no Trust policy that is applicable or relevant to the inquiry. MHPS does not apply, as this is not a matter of conduct, capability or ill-health. I will however ensure that any reasonable adjustments required to alleviate the impact of your disability are implemented in order to facilitate your full opportunity to participate in the inquiry and process. I will also ensure that such process is conducted fully in line with the principles of fairness."

C. The issues in the proceedings

17. These proceedings were issued on 19 February 2018. Although the main focus of the claim is the further inquiry referred to in Mr. Pickersgill's undated letter ("the Lockett Investigation"), claims are also made in respect of various matters occurring since November 2015. The Agreed List of Issues sets out the issues as follows.

"1. Was the Trust in breach of Dr Jain's contract of employment by commencing an investigation on 15 December 2017 outside MHPS:

a. when an investigation under Part IV of MHPS into the same matters was currently suspended? and/or

b. without investigating and seeking to resolve any underlying concerns, including the concerns raised in the documents dated 27th March and 27 April 2017, pursuant to Part IV MHPS?

2. Was the Trust in breach of Dr Jain's contract of employment by using material obtained from the mediation and the Tegerdine report as part of its investigation into the alleged breakdown in working relationships between Dr Jain and his consultant colleagues and/or in breaching the assurances given to Dr Jain about the confidential nature of the mediation?

Mediation

3. Was the Trust in breach of Dr Jain's contract of employment by proceeding with the mediation when to its knowledge concerns had been raised about Dr Jain's capability as set out in the documents dated 27 March 2017 and 27 April 2017?

Exclusion/restriction

4. Did the actions of the Trust with regards to Dr Jain from 5 November 2015 and/or 2 January 2018 amount to an exclusion or a restriction for the purposes of Part II MHPS?

5. Was the exclusion or restriction from 5 November 2015 and/or 2 January 2018 a breach of Dr Jain's contract of employment on the part of the Trust?

Re-skilling

6. Was the Trust in breach of Dr Jain's contract of employment by failing from November 2015 to explore, consider and implement an alternative re-skilling plan with regard to breast radiology?

7. Was the Trust in breach of Dr Jain's contract of employment (and/or any agreement reached on 30 March 2017) by failing from July 2017 to explore, consider and implement an alternative re-skilling plan with regard to breast radiology?

Cumulative Impact of Breaches

8. Was the cumulative effect of all or any of the alleged failures by the Trust a breach of the express or implied terms of Dr Jain's contract of employment?"

D. Decision

18. I heard evidence from the Claimant; Dr Mary Wilson a Consultant Radiologist who was the Claimant's line manager from January 2015 until her retirement in 2016 (Dr Wilson was Clinical Director of the Breast Service from 2000, Divisional Medical Director for the Women and Children's Directorate from 2009, and from 2010 was Director of Screening); Dr John Crampton who, as the Trust's Medical Director, took the decision in November 2015 to commence the MHPS investigation; and Mr. Andrew Pickersgill, a Consultant and Speciality Lead in Obstetrics and Gynaecology who, from July 2016, was the Case Manager for the November 2015 MHPS investigation. These witnesses were all cross-examined on their statements. There is little by way of disputed evidence in this case. The events from 2008 are evidenced by the 2000pp or so of documents in the hearing bundle. This is a case where the contemporaneous documents tend to set out what happened, and evidence the reasons for specific decisions. For most purposes I consider that those documents will be the best evidence of those matters. The cross-examination in this case tended to go not to what happened, but rather to the assessment of the wisdom or legal consequences of decisions made from time to time, and recorded in the documents. I also read the statement Ian Tegerdine, the contents of which were agreed.
19. I will consider the issues listed above in chronological order, rather than the order in the agreed list. However, before doing that I will consider the issue that arose as to the contractual status of the MHPS. This issue is primarily relevant to Issue 1, although the contractual status of the MHPS provides the context for and has some relevance to the other agreed issues.

(1) The contractual status of the MHPS

20. The point arising is whether or not the MHPS formed part of the Claimant's terms and conditions of employment – specifically whether it was one of the "disciplinary or capability procedures" referred to clause 17 of the May 2004 contract.
21. The MHPS is in five parts. Part III it titled "Conduct Hearings and Disciplinary Matters"; Part V is titled "Handling Concerns about a Practitioner's Health". Neither is directly relevant to the issues in these proceedings.
22. Part I is titled "Action when a concern arises". So far as is material for present purposes, its contents are as follows.

(a) Paragraph 2 refers to the reputational and career damage that can result from allegations against doctors. It states that "all allegations … must be properly investigated to verify the facts so that allegations can be shown to be true or false".

(b) Paragraph 4 is to the effect that when serious concerns are raised a Case Manager should be appointed. By paragraphs 8 – 10 the Case Manager's first task is to assess the seriousness of the complaint to determine whether it should be addressed formally (though an investigation) or informally. These paragraphs emphasise the role that can be played by the National Clinical Assessment Authority (referred to as the "NCAA" or "NCAS"). The NCAS is part of NHS Resolution (previously known as the NHS Litigation Authority); it is a source of expert advice and support for NHS employers who are addressing concerns about professional practice. The point made in these paragraphs of the MHPS is that the Case Manager should discuss the case with the NCAS, and in an appropriate case consider informal resolution such as an assessment of clinical practice which might involve the NCAS. Statements to the effect that Case Managers should discuss cases with NCAS occur throughout the MHPS, although it is also clear that responsibility for deciding what action to take stays with the Case Manager.

(c) By paragraph 11, where the Case Manager decides that matters should be addressed formally, he should appoint a Case Investigator. At this stage the practitioner who is the subject of the investigation is to be told the specific allegations or concerns that have arisen and have access to correspondence relating to the investigation to date (paragraph 13). The practitioner should be told who is to be interviewed during the investigation, and should himself have the opportunity to put his version of events to the investigator.

(d) The Case Investigator leads and records the investigation – see generally, paragraph 12. He reports to the Case Manager and should provide sufficient information to the Case Manager to allow him to decide what should happen next (see paragraph 17).

(e) The options open to the Case Manager at the end of the investigation are listed at paragraph 17. For example, he may decide that no further action is to be taken, or that a case of misconduct exists which should go to a conduct panel, or that there should be an occupational health assessment, or that there is a performance issue that should be referred to the NCAS (the work that NCAS does in this regard is further set out at paragraphs 18 – 20), or that the case should be referred to a conduct panel.

Part II of the MHPS is headed "Restriction of Practice and Exclusion from Work". The phrase "exclusion from work" is used to mean "suspension": see paragraphs 2 and 5. "Restriction" is a lesser step: the practitioner remains at work but limitations are placed on the types of clinical duties he undertakes.

23. Part IV is titled "Procedures for Dealing with Issues of Capability". Capability issues are described as follows (paragraph 3).

"… occasions where an employer considers that there has been a clear failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge, ability or consistently poor performance."

Paragraph 8 goes on to state this

"It is inevitable that some cases will cover conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. It is for the employer to decide on the most appropriate way forward having consulted with an NCAA adviser and their own employment law specialist."

24. Finally, in this regard, paragraphs 13 to 15 are material, and can be summarised in this way.

(a) When the investigation report is finished, the Case Manager should give the practitioner the opportunity "to comment in writing on the factual element of the report" (paragraph 13).

(b) The Case Manager then decides what to do taking account of the practitioner's comments, the contents of the investigation report, and advice from NCAS. The options include resolution through "local action" (examples given are retraining, counselling and performance review); resolution by means of an NCAS action plan, or reference to a capability panel (see paragraphs 14 – 15).

25. In Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735 (QB), Simler J considered the meaning and effect of paragraphs 14 – 15 of MHPS Part IV, read together with paragraph 17 of MHPS Part I (see generally, her judgment at paragraphs 115 – 147). Her conclusion was to the effect that notwithstanding that in the absence of "local action" the employer is required to refer the situation to NCAS to consider if an action plan could be formulated, it is not the case that if NCAS formulates such a plan, that precludes the employer from putting the case to a capability panel. Even where an NCAS action plan is available, it is for the employer to decide between that path and a capability hearing. By reaching that conclusion Simler J disagreed with the judgment of Slade J in Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178, where the opposite conclusion had been reached. In argument before me, both parties were content for me to proceed on the basis that Simler J's conclusion on this matter was correct. For my part, although the way in which paragraph 17 of MHPS Part I and paragraphs 14 – 15 of MHPS Part IV are to be read together is far from clear, I agree with Simler J's view. The contrary approach which would subordinate the employer Trust to the NCAS would be unusual and at odds with the general approach under which NHS Trusts have primary responsibility for employment decisions.
26. This then is the effect of the material parts of the MHPS. In Chakrabarty, Simler J further concluded that paragraphs 14 – 15 of MHPS Part IV gave rise to obligations that were apt for incorporation into a contract of employment. In that case it was not in dispute that the MHPS had been expressly incorporated into the contract of employment. In the present case the position is in dispute – the Claimant contends that the MHPS has been incorporated into his contract of employment, the Trust contends that on the evidence available there is no contractually incorporated capability procedure.
27. Clause 17 of the May 2004 contract states that disciplinary and capability issues will be addressed "… through our [i.e., the Trust's] disciplinary or capability procedures". But it is far from clear what those procedures were – either as at 2015 when complaints were raised against the Claimant, or as at December 2017 when the Trust took the decision to commission the Lockett Inquiry. There is no direct evidence as to which disciplinary and capability procedures applied to the Claimant, as a matter of contract. The documentation available to me is scanty and most likely incomplete; I have been informed of other matters by counsel on instructions although for the most part those instructions were only to the effect that no information was available on one point or another.
28. The Claimant's original letter of appointment (dated 13 August 2001) referred to a disciplinary procedure contained in a staff handbook. The letter did not say in terms whether the handbook was a contractual document. It is possible that the procedure referred to is one titled "South Manchester University Hospitals NHS Trust: Disciplinary Procedures for Medical Staff", a copy of which was provided to me in the course of the hearing. On the copy provided, it is recorded that this procedure was agreed at the South Manchester Trust Local Negotiating Committee in May 1995. There is no evidence either way as to whether this procedure remained in force as at the time of the May 2004 contract. In a letter dated 30 July 2008, written to the Claimant in connection with the complaints made against him at that time, the Trust's then Divisional Medical Director stated that in the event that a formal procedure was applied to those issues the Trust would "… follow the procedure set out in its Disciplinary Procedure for Medical Staff". That could be a reference to the May 1995 document, but there is no evidence to that effect, and care needs to be taken not to read too much into this passing reference. This is all the more so given that in an earlier letter (dated 30 June 2008) in connection with the same complaints, the same Divisional Medical Director explained that those matters would be addressed "in accordance with Maintaining High Professional Standards guidance".
29. From what I have been told, it seems that in practice, when it came to identifying a procedure as contractual or not, the Trust placed importance on whether or not a procedure had been agreed through its Local Negotiating Committee. Following the Secretary of State's 2005 Direction it appears that the Trust did prepare a new disciplinary and capability procedure document which was closely modelled on the MHPS. I have seen a copy of that document. I have been told that although this document was tabled before the Local Negotiating Committee, it has not been agreed by that Committee. It does not appear that the contents of the document are a matter of dispute; it is simply that the document has never been agreed. The upshot of these matters is that on the evidence available I cannot conclude that the MHPS was expressly incorporated into the Claimant's contract of employment. It follows that the MHPS was not one of the procedures referred to in clause 17 of the May 2004 contract. For sake of completeness, I have considered whether there is any basis to conclude that the MHPS has been incorporated into the Trust's contracts of employment by reason of custom and practice. But there was simply no evidence before me from which any such conclusion could be drawn. The only evidence before me concerning the Trust's use of the MHPS relates only to the Claimant – i.e. that in his case the MHPS process was followed both in 2008 and 2015. That evidence alone is an insufficient basis to conclude that the MHPS had specific contractual effect.
30. Mr. Hyam QC, who appears for the Claimant, made a further submission by reference to the Secretary of State's 2005 Direction to the effect that this could provide a route by which the MHPS had contractual effect. In support of this submission he referred to the judgment of Underhill J in Mezey v South West London and St George's Mental Health NHS Trust [2006] EWHC 3473 (QB). In that case and in the context of an application for interim relief, Underhill J accepted that it was arguable, in the absence of an applicable contractual disciplinary procedure, that the ordinary obligation to maintain trust and confidence obligation required an employer to act in accordance with the Secretary of State's 2003 Direction, which had related to MHPS Parts I and II, in circumstances covered by their provisions. (see his judgment at paragraphs 16 – 18).
31. I do not consider that the 2005 Direction on its own can provide a route to incorporation. If the 2005 Direction had such an effect, it would have been operative with effect from 17 February 2005 when the 2005 Direction came into force. For present purposes I am prepared to accept that the then South Manchester Trust was required to comply with the 2005 Direction, because it was not at the time a Foundation Trust. On this basis, the consequence of the 2005 Direction was that the then South Manchester Trust was required as a matter of public law, to "comply" with the MHPS, and required to "implement" the MHPS by 1 June 2005. But those obligations do not of themselves determine whether or not the MHPS was incorporated into the contracts of employment of all relevant medical staff.
32. Any argument to the effect that the 2005 Direction is determinative of this matter must rest on two premises. The first is that it was open to the Secretary of State, by direction, to permit and require an NHS Trust to effect unilateral changes to its contracts of employment. This does not sit well with the scope of the Secretary of State's power to give directions. So far as the source of the Secretary of State's power, the 2005 Direction referred (among other matters) to section 17 of the National Health Service Act 1977, and paragraph 16(5) of Schedule 2 to the National Health Service and Community Care Act 1990. The latter provision needed to be read with paragraph 16(4), and was in the following terms.

"(4) Subject to sub-paragraph (5) below, an NHS trust may–

(a) pay its staff such remuneration and allowances, and

(b) employ them on such other terms and conditions,

as it thinks fit.

(5) An NHS trust shall–

(a) in exercising its powers under sub-paragraph (4) above, and

(b) otherwise in connection with the employment of its staff, act in accordance with regulations and any directions given by the Secretary of State."

Section 17 of the 1977 Act was materially to the same effect.

"17. Directions as to exercise of functions.

(1) The Secretary of State may give directions with respect to the exercise—

(a) by Health Authorities of any functions exercisable by them under or by virtue of this or any other Act; and

(b) …

(2) It shall be the duty of a Health Authority … to whom directions are given under subsection (1) above to comply with the directions."

Neither provision is apt to give the Secretary of State a power to direct that an NHS Trust make unilateral changes to the terms of contracts of employment made by it. Any such power – to override contractual rights – would be remarkable, and is not the sort of power that would ordinarily arise from generally worded powers such as those set out above. It is not material that it could be said that the change in issue in this case – the application of the MHPS – was beneficial to employees' interests. If the Secretary of State had the power to require NHS Trusts to make unilateral variations he must be taken to have that power for all purposes, including directing variations to terms and conditions of employment to the detriment of employees.

33. The second premise is that even assuming that the Secretary of State had the power to require the NHS bodies to whom the 2005 Direction was addressed unilaterally to vary contracts of employment, the direction as made was in fact an exercise of that power. On its face the 2005 Direction does not purport to be an exercise in requiring the relevant NHS bodies to make unilateral changes. The obligation to "implement" the MHPS does not require usual means of contractual change to be disregarded. Thus, even if the Secretary of State had the power to require the NHS bodies to make unilateral changes, the 2005 Direction was not a use that power. For these reasons the MHPS did not become part of the Claimant's terms and conditions of employment by reason of the 2005 Direction.
34. The remaining arguments in respect of whether the MHPS has contractual effect have focussed on its effect on the content of the trust and confidence obligation that is a usual aspect of any employment contract. I do not consider that the 2005 Direction somehow fixed the content of the trust and confidence obligation to the extent that any failure to follow the MHPS would of necessity be a breach of the trust and confidence obligation. Any conclusion to the contrary would amount to incorporation of the MHPS by the back door.
35. However, I accept that on the facts of the Claimant's case it is correct to conclude that the provisions of the MHPS are relevant considerations when determining whether the Trust has acted consistently with the trust and confidence obligation. This was essentially the submission made by Mr. Sutton QC who appeared on behalf of the Trust. Even though the MHPS had not been incorporated, either expressly or on the basis of custom and practice, the letter to the Claimant's solicitor sent on 2 November 2015, and the further letter to the Claimant dated 5 November 2015, both made clear that the concerns raised relating to his competence and professional relationships would be addressed under MHPS Part IV. Having taken the decision to address those concerns by that procedure, my conclusion is that the obligation to maintain trust and confidence required the Trust to follow the procedure set out in that part of the MHPS unless there was a justifiable reason not to do so. In this way, although the MHPS did not come to represent the content of the trust and confidence obligation, the content of the MHPS became a directly (and centrally) relevant consideration for the purpose of assessing whether actions taken by the Trust since 2015 have been consistent with the obligation to maintain the relationship of trust and confidence.
36. I will now turn to the specific issues on the Agreed List, taking them in a roughly chronological order, rather than the order on that list.

(2) Issues 4 and 5

Did the actions of the Trust with regards to Dr Jain from 5 November 2015 and/or 2 January 2018 amount to an exclusion or a restriction for the purposes of Part II MHPS?

Was the exclusion or restriction from 5 November 2015 and/or 2 January 2018 a breach of Dr Jain's contract of employment on the part of the Trust?

37. The letter from Dr Levy to the Claimant dated 5 November 2015 included the following.

"Given the nature of the matter being investigated, advice has been sought from NCAS and I need to inform you that I am restricting your practice with immediate effect in line with Section II of Maintaining High Professional Standards in the Modern NHS. You are to confine your practice to plain film reporting within the General Radiology Department and not undertake any clinical practice in relation to Breast Radiology."

The undated letter of December 2017, written in anticipation of the Claimant's return from sick leave on 2 January 2018 stated "… the temporary suspension of your breast film reading practice remains in place". This was a reference to the suspension that the Claimant had been told about in the email from Mr. Pickersgill of 12 July 2017.

38. As to Issue 4, I am in no doubt at all that each decision was, for the purposes of MHPS Part II, a restriction and not an exclusion. The Claimant's argument to the contrary rests on what is said at MHPS Part II paragraph 24 under the heading "Exclusion from Premises", and the contention that there a distinction is drawn between exclusion and exclusion from premises, such that (contends the Claimant) "suspension from one part of a practitioner's practice … is an exclusion". There is no substance to this point. The material passage in Part II is paragraphs 4 – 7. Here it is stated in terms that "exclusion" is used to mean suspension from work; and it is made equally clear that one lesser alternative to exclusion is to restrict the practitioner "to certain forms of clinical duties". No part of paragraph 24 casts any doubt on any of this. In the present case the decisions (in November 2015 and again in July 2017) that the Claimant should cease to undertake Breast Service work were plainly restrictions on his practice, they were treated by the Trust as such for the purposes of MHPS Part II, and the Trust was plainly right to do so.
39. Turning to the first part of Issue 5, the November 2015 restriction decision was taken by Dr Crampton. His evidence was that the complaints about the Claimant's clinical practice were serious and that pending investigation under the MHPS he considered they gave rise to a risk to patient safety, and that the restriction he imposed was a suitable measure to safeguard patient safety. I accept this evidence. Dr Crampton's approach was entirely consistent with MHPS Part II, which identifies the need to safeguard patient safety as a governing concern. It was suggested to Dr Crampton in cross-examination, that he may have been too hasty in deciding to impose a restriction, or ought to have taken the view that the complaints were not such as to place any significant question mark over the Claimant's performance of film reading work in the Breast Service. Dr Crampton disagreed. I accept that where issues reasonably judged to be significant are raised which go to a practitioner's performance, any Trust is entitled to adopt a precautionary approach. There can be no doubt about this at all in the context of the work undertaken by the Breast Service. Dr Crampton took his decision in a context of complaints against the Claimant which he rightly regarded as significant. The Claimant relies on the trust and confidence obligation, and contends that Dr Crampton's decision was in breach of that obligation. Although it is for me to decide whether or not Dr Crampton's decision amounted to a breach of contract, I cannot ignore that this was a decision resting on a professional judgement on an issue of patient safety. That being so, I believe it is right that I should give real weight to his assessment, which I consider to have been made in good faith. I do not consider that his decision amounts to a breach of the trust and confidence obligation (or for that matter any breach of any contractual obligation owed to the Claimant).
40. The Claimant's contention about the restriction applied to him on his return to work on 2 January 2018, is in substance a complaint about the decision in July 2017 that the March 2017 reintegration plan should be suspended, and in consequence the Claimant should cease breast film reading work. Around the time of the July 2017 decision the Claimant went on sick leave; the decision in respect of the work he should do on his return from sick leave in January 2018 was no more than the continuation of the July 2017 decision.
41. The effect of the November 2015 restriction was that the Claimant stopped breast film reading work. Following the meeting on 30 March 2017 it was agreed the Claimant would recommence breast film reading in accordance with return to work plan discussed at that meeting, which was to the effect that the Claimant would recommence breast film reading initially as a "third reader" – i.e. working together with two other consultants. The expectation was that the Claimant would recommence breast film reading from the beginning of May 2017 on the Thursday of each week, and that progress would be reviewed in July 2017. The other film readers on Thursdays were usually Dr Lim and Dr Hutchison. The Claimant did not recommence breast film reading until 18 May 2017; and between then and mid-July the Claimant completed only three breast film reading sessions. This was because Drs Lim and Hutchison were not both available on a number of Thursdays, and other consultants in the Breast Service were unwilling to work with the Claimant.
42. On 14 July 2017 Drs Lim and Hutchison wrote to Mr. Pickersgill. They noted that only three sessions had been completed, and for that reason stated it was difficult to make any judgement as to the Claimant's overall performance. Yet they went on to note that many of the cases where the Claimant considered that a patient should be recalled for further tests were "simply normal areas of glandular breast tissue rather than genuinely indeterminate areas". They said this was a matter of concern given the Claimant's long years of experience (albeit that he had not undertaken breast film work between November 2015 and May 2017). This email followed a conversation between Mr. Pickersgill and Drs Lim and Hutchison on 7 July 2017. By this time Mr. Pickersgill had spoken to Mr. Tegerdine. Mr. Tegerdine had told him that consultant radiologists he had spoken to had refused to attend mediation meetings with the Claimant. Mr. Pickersgill then met Drs Lim and Hutchison. They explained they had concerns about the Claimant's work, and were uncomfortable with his manner. Both told Mr Pickersgill they would refuse to work with the Claimant. Based on these two conversations Mr. Pickersgill took the decision (communicated to the Claimant on 12 July 2017) to suspend the March 2017 reintegration plan and thereby reimpose the practice restriction on breast film reading.
43. I accept that if the matter was considered only on the basis of the contents of the 14 July 2017 email, Mr. Pickersgill's decision might have been an overreaction. But his decision was based on what he had been told by Mr. Tegerdine, and by Drs Lim and Hutchison. The sum of this was that the part of the March 2017 reintegration plan concerning breast film reading could not continue, at least until steps were taken to persuade the other consultant radiologists in the Breast Service to work with the Claimant. That part of the plan had been the measure put in place to address the November 2015 allegation about film reading performance. That being so, the situation facing Mr. Pickersgill in July 2017 was materially the same as the one faced by Dr Crampton in November 2015, save that by July 2017 the Claimant had only undertaken film reading on three occasions in the preceding 20 months. Allowing due weight to the professional judgement involved, I do not consider that the decision to suspend the March 2017 reintegration plan and consequently reimpose the practice restriction on breast film reading amounted to a breach of contract.

(3) Issue 3

Was the Trust in breach of Dr Jain's contract of employment by proceeding with the mediation when to its knowledge concerns had been raised about Dr Jain's capability as set out in the documents dated 27 March 2017 and 27 April 2017?

44. This complaint is also made by reference to the trust and confidence obligation. The full formulation of that obligation is that neither party to a contract of employment should act in a way calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Looking at the circumstances overall by March/April 2017 I do not consider that going ahead with the mediation, which was part of the package of measures put in place following the 30 March 2017 meeting, falls into this class of conduct.
45. By the latter part of 2016 the MHPS investigation had come to a virtual standstill. Mr. Barr's investigation had covered all matters he had wished to cover save that he had not been able to secure any substantive meeting with the Claimant. Various obstacles had to this meeting had been put forward over the months since November 2015. There was a long-running dispute about the amount of documentation that needed to be supplied to the Claimant and his solicitors before the investigation meeting could take place. Whatever those advising the Claimant may have thought at the time, any objective assessment suggests that there had been some loss of proper perspective. Mr. Pickersgill, who had recently taken over as the Case Manager for the MHPS investigation, decided to suspend the investigation and put forward proposed terms for the Claimant's return to Breast Service work. Until the end of 2016, I have been told that those proposals were the subject of "without prejudice" discussions. Early in 2017 the Claimant threatened legal proceedings. The Trust's response to that was an open offer to discuss a way for the Claimant to return to work in the Breast Service. This was discussed at a meeting on 30 March 2017, and the elements of the plan were confirmed in a later letter. One important part of the plan was that there should be mediation involving the Claimant and all other consultant radiologists in the Breast Service; this would be part of the process of rebuilding working relationships with the Claimant. There has been no suggestion in these proceedings that, in principle, there was anything objectionable to mediation. Rather the Claimant's contention is that in light of the contents of emails dated 27 March and 27 April 2017 from Dr Hutchison, the proposed mediation was doomed to fail – and perhaps even might make matters worse – and so should have been abandoned.
46. I reject this contention. It is entirely correct that Dr Hutchison's emails set out serious concerns about the Claimant's ability to carry out breast film reading work. In the first email she sets out her own concerns; the in the second she reports concerns raised by other consultant radiologists about the Claimant's clinic practice, and his working behaviour. The Claimant submits that once these matters became known to Mr Pickersgill he should have put the mediation on hold and turned his attention instead to steps aimed at addressing the concerns expressed about the Claimant's professional competence. If this had been done (the submission goes) that would have provided a better foundation for later mediation aimed at restoring working relationships with the Claimant. I accept that this is one point of view as to how the Trust should have gone about matters in 2017, but I do not accept that the way in which the Trust did act amounted to a breach of the trust and confidence obligation. The March 2017 reintegration plan proposed concurrent steps to address the capability concerns and the difficulties in professional relationships. The former was to be addressed by the Claimant doing breast film reading as a third reader; the latter by the mediation. It is important on this issue to assess matters as they were as at March/April 2017, and to avoid assessment that rests on hindsight. The Trust's concurrent approach – taking matters together rather than consecutively – cannot be said to be a step calculated or likely to seriously damage or destroy the trust and confidence relationship. In my view this did not change once the strength of feeling that is plain from Dr Hutchison's emails became apparent. Skilled mediation is capable of rescuing many situations where attitudes appear entrenched; even if mediation does not always lead to immediate resolution, it can often be the means by which a way forward can emerge. Notwithstanding the matters set out in Dr Hutchison's emails, it was no breach of contract for the Trust to go ahead with the mediation in the hope that it would lead to some progress. That remained a reasonable view at that time, and as such was a course of action entirely consistent with the trust and confidence obligation.

(4) Issues 6 and 7

6. Was the Trust in breach of Dr Jain's contract of employment by failing from November 2015 to explore, consider and implement an alternative re-skilling plan with regard to breast radiology?

7. Was the Trust in breach of Dr Jain's contract of employment (and/or any agreement reached on 30 March 2017) by failing from July 2017 to explore, consider and implement an alternative re-skilling plan with regard to breast radiology?

47. In large part these are further complaints based on the trust and confidence obligation, and like the breaches alleged under Issues 3 – 5, are complaints directed to what were in substance discretionary decisions by the Trust as to how to address the concerns that prompted the November 2015 MHPS investigation. On these matters too, I must judge for myself whether the Trust's actions breached the trust and confidence obligation. But in doing this I must allow some latitude to the Trust for reasonable assessment. This is appropriate since the allegation of breach is not directed to a situation in which there was likely to be only one option consistent with the requirements of the trust and confidence obligation. The remaining part of Issue 7 alleges, as an additional claim for breach of contract, a breach of a contract said to have been made on 30 March 2017 – i.e. at the meeting where the March 2017 reintegration plan was settled.
48. Taking the whole of the period from November 2015 up to and including February 2018 when these proceedings were commenced, my conclusion is that the Trust did not act in breach of the trust and confidence obligation as alleged in Issues 6 and 7. As at November 2015 the decision to pursue an MHPS Part IV investigation (rather than some other course of action) was an appropriate decision. Before taking this decision, the Trust had – as required by the MHPS – sought advice from NCAS. There is a letter from NCAS dated 5 November 2015 which confirms this conversation which states "… we noted that a formal investigation is likely to be appropriate in the circumstances of this case where there are long standing concerns about the health, capability and conduct of a consultant". Whatever NCAS might say will not be determinative of whether or not any particular course of action amounts to a breach of contract. But in this instance the view stated by NCAS is material since it supports the conclusion that commencing a formal investigation was an appropriate choice. The MHPS Part IV investigation was one way of identifying whether the Claimant needed training ("re-skilling" as it has been referred to by the parties in these proceedings), and if so, what form that training might take. I also note that as at November 2015 the MHPS investigation was not the only route the Trust followed – the Trust also sought an occupational health report with a view to assessing the Claimant's physical ability to undertake the full range of clinical work in the Breast Service. This too was relevant to the overall issue of the work that the Claimant could perform in the Breast Service.
49. The Trust pursued the MHPS Part IV investigation until the latter part of 2016. I have already said something about the reasons why the investigation took the time it did, and the reasons why a year after it had started, it remained incomplete. It was not wrong or in breach of contract for the Trust to persist in the investigation during this period of time. The reality of the situation was that once started the investigation could not simply be abandoned – either it needed to be pursued so that some appropriate conclusion could be reached on the complaints raised in November 2015, or those same concerns needed to be addressed by some other means. Absent one or other of these events there would have been obvious difficulties had the Claimant simply returned to a full range of duties in the Breast Service.
50. From the latter part of 2016 on a "without prejudice" basis, and in the first part of 2017 following open discussions, the Trust did attempt an alternative approach to getting the Claimant back to work in the Breast Service. As explained above, one part of this was expressly directed to restoring and/or establishing the Claimant's ability to undertake breast film reading; a different part of the same plan which sought further information from the occupational health department was undertaken with a view to establishing for all purposes, the Claimant's physical ability to undertake all assessment clinic work. This course of action was also taken in conjunction with advice received from NCAS. The fact that the Trust sought NCAS advice, and the fact that NCAS appears to have broadly accepted the course of action proposed, are both material to the suggestion that this approach was in breach of the trust and confidence obligation.
51. The Trust suspended implementation of the March 2017 reintegration plan in July 2017. Since then there was a period when the Claimant was on sick leave, which lasted until the end of 2017. In December 2017, in anticipation of the Claimant's return from sick leave the Trust commissioned what it described as an "Independent inquiry into working relationships in the Breast Radiology Team". This was the investigation undertaken by Catherine Lockett. The terms of reference of that investigation were stated as follows.

"Based on the conclusions of the report compiled by Mr. Tegerdine, the terms of reference for this inquiry are.

4.1 To investigate the extent to which relationships have broken down between Dr Jain and his colleagues in the Breast Radiology Team; and

4.2 To investigate the potential impact that such breakdown in relationships may have on the proper functioning of the Breast Radiology team, and delivery of safe patient care, should Dr Jain be permitted to return to his former duties (if appropriate and subject to clinical concerns being properly addressed); and

4.3 To investigate any factors that may ameliorate the potential impact on the proper functioning of the Breast Radiology team and the delivery of safe patient care."

Mrs. Lockett was required to prepare a report for the Case Manager, Mr. Pickersgill.

52. To complete the narrative, Mrs. Lockett completed her investigation report on 19 April 2018. By that time these proceedings had commenced. Over the following months the Claimant took the opportunity to provide Mrs Lockett with his comments on the report, which she considered. The Claimant also pursued an internal grievance. To some extent the issues in that grievance overlapped with the issues in these proceedings. The decision on that grievance was set out in a letter dated 8 May 2018. The Claimant commenced an appeal against the grievance decision; in the course of the hearing I was told that the Claimant had now decided not to pursue that appeal. By letter dated 28 September 2018, Dr O'Shea, the Trust's Clinical Head of Division for Radiology and Interim Director for Clinical and Scientific Services wrote to the Claimant informing him that Mr. Pickersgill had provided her with a copy of the Lockett report and that she intended to await the outcome of this litigation before decided what, if any, further action should be taken.
53. As is obvious, the focus of the Lockett investigation was the working relationships within the Breast Service. It is also clear from a letter from NCAS dated 13 December 2017 which summarises the content of discussions between the NCAS and the Trust that the investigation was proposed with a view to enabling consideration by the Trust whether it might dismiss the Claimant by reason of the breakdown of working relationships and the possible effect of that on patient safety. In short, at this time (December 2017) the Trust had turned its attention to the working relationships among the radiology consultants in the Breast Service. Yet, as is clear from the terms of reference for the Lockett investigation, the Trust had not turned its back on retraining the Claimant. Rather it had decided (taking a different approach from the one in the March 2017 reintegration plan) to address the working relationships first, on the basis that retraining could then follow. I accept that one point of view is that if matters relating to the Claimant's capability were addressed first, and were successfully addressed that might itself be a step towards restoring the professional relationships. But that was not a conclusion that the Trust was bound to reach. The attempt at mediation in June/July 2017 had, according to Mr. Tegerdine, shown that working relationships between the Claimant and the other consultant radiologists in the Breast Service had irretrievably broken down. He concluded that this was in part the consequence of concerns about the Claimant's clinical competence, but this was far from being a complete explanation for the breakdown (see generally, Mr. Tegerdine's mediation report). In these circumstances, the decision to address working relationships first, and hold matters of retraining in abeyance did not amount to a breach of the trust and confidence obligation. In his submissions for the Claimant Mr. Hyam QC contends that the trust and confidence obligation gave rise to a duty to "re-skill" the Claimant. I do not consider this is a correct analysis of the matter. In the circumstances of this case, the focus of the trust and confidence obligation must be on the Trust's conduct of the investigation of the matters that had first emerged in November 2015. Did the way in which the Trust, from time to time, sought to address those matters (as they had developed over time) meet the requirement not to act in a manner calculated or likely to destroy or seriously damage the trust and confidence obligation? Once the point is put in this way, my conclusion is that the changes of tack by the Trust, in March 2017 and then again in December 2017 were each justified attempts to address the matters that had given rise to the November 2015 investigation, as those matters had evolved over time, striking a responsible balance between the Claimant's interests and the Trust's wider interests given its responsibility for the Breast Service and the patients served by it. All that happened was consistent with the obligation owed to the Claimant to maintain trust and confidence.
54. This conclusion does not change if the same matters – or at least events following March 2017 – are considered taking specific account of the March 2017 reintegration plan. Part of the Claimant's case on Issue 7 starts from the premise that the reintegration plan agreed in March 2017 was itself a freestanding legally enforceable agreement. I think that is a false analysis. The (undated) letter from the Trust that followed the meeting on 30 March 2017 described the meeting as having resulted in "agreed actions". In the circumstances that is an accurate description. The purpose of the meeting was to discuss proposals that would secure the Claimant's return to work in the Breast Service, notwithstanding that there had been no formal conclusion of the November 2015 MHPS investigation. Those proposals would only stand a chance of success if the Claimant agreed to them, but it is mischaracterisation to suggest that this meant that the upshot of the 30 March meeting was a new set of legally enforceable obligations.
55. There is no clear evidence that the parties intended that their agreed actions would create legally binding obligations. I can see no reason to infer that this was so. Any such inference would be at odds with the substance of the matters recorded in the Trust's undated letter (and for that matter also, at odds with the substance of the discussion recorded in the note of the 30 March meeting). It is not possible to spell out legal obligations from all the arrangements as described. For the most part they set out a plan that the Trust and the Claimant agreed to work to. But the success of this plan was quite obviously dependent on matters outside the direct control of the Trust and of the Claimant, or contingent on the actions of others, or both (for example, the willingness of the other radiology consultants to work with the Claimant or the views they might express in the course of the proposed mediation). None of this is consistent with the plan as a source of legal obligation. Even though it might be possible to identify some parts of the plan as sufficiently certain as to be capable of comprising enforceable obligations, I see no reason to elevate one or more such matters in this way, since that too would be a distortion of what seems to me to have been the parties' intention. That was that the parties did not presume to create new legal obligations. Such obligations would most likely have been contrary to the purpose at that time, namely that although the reintegration plan would be put into practice, these were the sort of pragmatic arrangements which might from time to time need to be modified to take account of changing circumstances. As I see it, the purpose on this occasion was not that the parties should stand on their rights, let alone create new rights to stand on; rather it was to set out a sensible, practical route map. For all these reasons I reject the Claimant's alternative argument on Issue 7.

(5) Issues 1 and 2

1. Was the Trust in breach of Dr Jain's contract of employment by commencing an investigation on 15 December 2017 outside MHPS:

a. when an investigation under Part IV of MHPS into the same matters was currently suspended? and/or

b. without investigating and seeking to resolve any underlying concerns, including the concerns raised in the documents dated 27th March and 27 April 2017, pursuant to Part IV MHPS?

2. Was the Trust in breach of Dr Jain's contract of employment by using material obtained from the mediation and the Tegerdine report as part of its investigation into the alleged breakdown in working relationships between Dr Jain and his consultant colleagues and/or in breaching the assurances given to Dr Jain about the confidential nature of the mediation?

56. These complaints are directed to the Trust's decision to commission the Lockett investigation. I have already set out the terms of reference for that investigation (see above at paragraph 51). For the purposes of her investigation, the Trust provided Mrs Lockett with a copy of the report prepared by Mr Tegerdine following the June/July 2017 mediation. It was confirmed to me during the hearing that Issue 2 is directed to that report, and to no other material.
57. The starting point for Issue 1 is my conclusions on the contractual status of the MHPS: see above at paragraphs 20 – 33. The MHPS was not, per se, incorporated into the Claimant's contract of employment. However, the circumstances are such that the contents of the MHPS are important material considerations when it comes to deciding whether the Trust's actions met the requirements of the trust and confidence obligation. Yet it will not follow that any failure by the Trust to follow steps set out in the MHPS will necessarily amount to a breach of contract.
58. The Claimant's primary contention on Issue 1 is that either because of the close connection between the subject matter of the Lockett investigation and the November 2015 MHPS investigation, or simply because of the nature of the issues covered by the Lockett investigation, the Lockett investigation should have been conducted as an MHPS investigation. The Claimant points to the express statement in the Trust's (undated) December 2017 letter that "… MHPS does not apply, as this is not a matter of conduct, capability or ill health".
59. Given my conclusion on the contractual significance of the MHPS I must consider the Claimant's contentions from the point of view of substance rather than form. In this regard MHPS Part IV, paragraph 8 (set out at paragraph 23 above) is relevant. That paragraph recognises that some sets of circumstances might defy strict categorisation as either matters of conduct or ones of capability, and that in that situation the employer should decide the most appropriate way forward having consulted its own employment advisers and NCAS. This is what the Trust did in this instance – a matter confirmed by the NCAS letter dated 13 December 2017. Nor do I consider that the reference in paragraph 8 to the "most appropriate way forward" limits the employer's choice to one or other of the options provided by the MHPS (i.e. Parts III, IV or V). Rather, having sought the views of NCAS and taken advice from its own employment advisers, the employer may decide to take any appropriate course. In any event, and given my conclusion that the MHPS was not incorporated into the Claimant's contract of employment, in this case the trust and confidence obligation did not require the Trust to choose between MHPS Parts II, IV and V, to the exclusion of any other options.
60. It is also important to note that even though the Trust clearly stated that the Lockett investigation was not under the auspices of the MHPS, what actually happened (procedurally) did reflect the key features of MHPS Part I, paragraphs 12 – 13. A case investigator was appointed – Mrs Lockett, there is nothing in the MHPS to the effect that the investigator must be an employee of the Trust. The Claimant was provided with the information referred to at MHPS Part I, paragraph 13, provided with the terms of reference for the investigation which clearly set out the matters that were of concern. He already had a copy of Mr. Tegerdine's report on the mediation. Mrs. Lockett went about her task as investigator consistently with the principles listed at MHPS Part I, paragraph 12. So even though the Trust took the view that the Lockett investigation was outside the scope of the MHPS, that investigation, as established, mirrored the material parts of the MHPS.
61. In this claim, one point emphasised by the Claimant is that all the matters underlying the breakdown of relationships between the Claimant and the other consultant radiologists in the Breast Service (for example those raised in Dr Hutchison's emails of 27 March 2017 and 27 April 2017), are within the scope of MHPS Part IV. For this reason (it is said) they should be the subject of a Part IV investigation. I do not attach any significant weight to this point. The matters within Mrs. Lockett's terms of reference do not sit easily within the description of capability issues at MHPS Part IV, paragraph 3. As I see it, given the other allegations in the November 2015 investigation that were clearly capability issues, it made sense then, for the allegation about interpersonal and communication style to be wrapped into the MHPS investigation. But by December 2017, following the mediation, the issue of working relationships had taken on a far greater importance, such that the Trust could appropriately conclude that it was a matter that was not simply or obviously an MHPS capability matter.
62. The Claimant next points to a clear link between matters within Mrs. Lockett's terms of reference, and some or all of the concerns that were the subject of the November 2015 investigation. There is some substance to this. Part of the November 2015 investigation was directed to the Claimant's "interpersonal and communication style regarding his relationships and approach to his line managers"; there is a connection between this and the terms of reference of the Lockett investigation, albeit that by December 2017 matters had moved on considerably.
63. Notwithstanding this connection I do not consider that as at December 2017 the Trust was bound as a matter of contract, to act by means of an MHPS Part IV investigation. As I have already explained, the difference between the process for such an investigation and the process followed by the Lockett investigation has been slight. This is clearly relevant to whether the way the Trust acted was in breach of the trust and confidence obligation. As regards the subject matter of the investigation, the focus of the terms of reference was the breakdown in working relationships. Some of the consultant radiologists expressed clear concerns about the Claimant's capability to work in the Breast Service; that was part of the picture. Yet the terms of reference for the Lockett investigation rested on the premise that those capability concerns could and would be addressed separately. I do not consider that the simple existence of a connection between the November 2015 issues and those to be investigated in December 2017 was such as to require the Trust to treat the investigation as an MHPS investigation.
64. The Claimant's further submission is that the Lockett investigation ought to have been under the MHPS because the November 2015 investigation remained outstanding. This submission requires me to consider the effect of a letter from Mr. Pickersgill to the Claimant dated 28 April 2017, written in the wake of the 30 March 2017 reintegration plan. Prior to that plan Mr. Pickersgill had told the Claimant that the November 2015 investigation had been suspended. At the 30 March 2017 meeting the Claimant said he wanted the investigation be closed. Mr. Pickersgill's response was that for the investigation to be closed he (as Case Manager) would first need to review the investigation report. The outcome of this review was the 28 April 2017 letter. In relation to the first three allegations Mr. Pickersgill's conclusion was that having considered the investigation report and taken account of the steps to be taken under the reintegration plan, no further action would be taken in respect of the allegations. On the fourth allegation (the one concerning "interpersonal and communication style") the conclusion was that in light of the agreement to mediate "no further action, at this stage, will take place … under a formal process". So, strictly speaking, the possibility of further formal action was left open – no doubt because of the difficulty in knowing what the outcome of the mediation process might be. Even though that possibility remained open, I do not think that commissioning the Lockett investigation as a non-MHPS investigation was in breach of the trust and confidence obligation. As I have said, in this case, the contents of the MHPS inform but do not necessarily determine the content of the trust and confidence obligation. The outcome of the mediation put a new light on the state of the working relationships between the Claimant and the remainder of the consultant radiologists in the Breast Service, and that being so, the decision to commission the Lockett investigation was not a breach of the trust and confidence obligation.
65. I now turn to Issue 2 – that the Trust acted in breach of contract by providing Mrs. Lockett with a copy of the Tegerdine report. There was no formal mediation agreement. The mediation was discussed in the course of the meeting on 30 March 2017, but that discussion centred on the form that the mediation might take and the range of people who would participate. These matters were reflected in the letter from the Trust that followed the March 2017 meeting. One point that is very clear, both from the notes of the meeting, and the letter that followed, is that the mediation was considered to be one part of as process by which the Claimant might be reintegrated into work in the Breast Service. In a letter dated 31 May 2017 Mr. Pickersgill referred to the mediation as being on a "strictly private and confidential basis" and "not on a Without Prejudice basis". The same phrase was then added to the heading of the terms of reference provided to Mr. Tegerdine. However, what was meant by the reference to strictly private and confidential is not explained in that letter, and when he gave evidence, Mr Pickersgill was unable to explain either why he had used the words or what he considered they meant in the context he used them.
66. The mediation report prepared by Mr. Tegerdine, sets out the terms of reference, and describes the steps taken for the purpose of the mediation. The most important part of the document (section 7) describes the responses provided by the consultant radiologists (other than the Claimant) who took part in the mediation, but does not attribute specific views to any specific consultant. One paragraph of section 7 refers to the meeting between the Claimant and Mr. Tegerdine. In that paragraph the Claimant's views on the circumstances necessary for his return to work in the Breast Service are described in very general terms.
67. Drawing these matters together, I do not consider that when the Trust provided a copy of the Tegerdine report to Mrs. Lockett for the purposes of her investigation, it acted in breach of any obligation owed to the Claimant. Context is important. This was not a mediation in the context of litigation. The mediation was part of the plan to return the Claimant to work in the Breast Service. In my view, what was meant by "private and confidential" flows from this context and from the circumstances that needed to prevail to encourage the consultant radiologists to take part in the mediation. For these reasons, I accept that the mediation was "private and confidential" in the sense that it was understood that the views of those who took part would not be generally known within the Trust (let alone outside it), and it must also have been expected that any information arising from the mediation would only be used for the purpose of attempts to rebuild working relationships between the consultants in the Breast Service. In this way knowledge of what happened in the course of the mediation would be limited by reference to a small group of people, and by reference to a defined purpose. This would be sufficient comfort and encouragement for the consultant radiologists to participate in the process. I do not consider that matters go beyond that.
68. Given the purpose of the mediation and its place in the context of the March 2017 reintegration plan it would be entirely unrealistic – in the absence of any express agreement – to conclude that any further notion of confidentiality existed. For example, it would run counter to those objectives to prevent the mediator reporting back to the Trust; and it would be a very strange state of affairs if having received Mr Tegerdine's report, the Trust was prohibited from using it in pursuit of any further steps that might be appropriate to explore whether and how the Claimant could resume his work. There is also one other matter to mention. Those most directly affected by the provision of Mr. Tegerdine's report to Mrs. Lockett were the consultant radiologists other than the Claimant. Section 7 of the report is directed to their views – as stated to Mr. Tegerdine. Very little is said about the Claimant's views.

(6) Overall conclusion

69. My overall conclusion is that the Claimant's claim fails. The Claimant's submissions also invited me to consider the Trust's actions in the round to see whether the cumulative effect of the Trust's actions since November 2015 amounted to a breach of the trust and confidence obligation. I have done this, but in this case, I do not consider that the sum of the parts changes the outcome. The complaints looked at individually do not disclose any breaches of contract. Looking at them together produces no different result.
70. Yet although the Trust's actions to date have not amounted to a breach of any contractual obligation owed to the Claimant, this conclusion says nothing as to what the Trust may do next. The conclusion that the Trust was entitled to commission the Lockett investigation as an investigation outside the MHPS will settle matters to date (or at least up to December 2017). It was not a breach of contract for the Trust to consider the working relationship issues outside the MHPS. But this judgment does not provide a prescription for what should happen now. As matters progress, the Trust will still need to follow a procedure that is fair. Indeed, in the undated December 2017 letter, it said in terms that this is what it would do. If a matter is addressed within the MHPS framework, the basic parameters of a fair procedure are described by the MHPS itself – there is an established framework to follow. However, outside the framework of the MHPS what is fair could well become to be more contentious. The Trust will now have to decide how to proceed based on the Lockett report. Thus, whether or not there should there be a hearing; what matters should it consider; who the decision-makers should be; how the hearing should be conducted, are all matters that the Trust will now have to address. None of these matters was within the scope of these proceedings and, for the avoidance of doubt, none is addressed in this judgment.