Scottish Court of Session Decisions

[1] At a vacation court hearing on 15 August 2000, the petitioner, a medical practitioner specialising in geriatrics, sought interim interdict against Tayside University Hospitals NHS Trust (the respondent) in the following terms:

In 1984, the petitioner was employed as a consultant geriatrician by the respondent's statutory predecessor. A contract of employment dated 14 May 1984 was entered into. That contract was neither produced nor referred to at the hearing on 15 August 2000. However it was accepted by both counsel that, as a result of the contract of employment, NHS Circular no. 1990 (PCS) 8 applied to the petitioner. A copy of the circular was lodged as number 6/1 of process. The circular sets out the disciplinary procedures to be followed where allegations of misconduct, whether personal or professional, or of professional incompetence, are made against practitioners. The procedures may ultimately lead to the dismissal of a practitioner.

[2] In 1995, disciplinary procedures were instituted against the petitioner. She was suspended on full pay. The formal procedures concluded in June 1996, but were followed by certain developments as narrated in paragraph 3 of the petition, namely:

A copy of the Minute of Agreement dated 17 November 1998 number 6/2 of process was referred to at the hearing.

[3] The Minute of Agreement number 6/2 of process provided inter alia as follows:

1. Dr. Stephen will not resume employment in Perth Royal Infirmary.
2. The Trust will second Dr. Stephen to a supernumerary post in which she will retrain and undergo supervision and assessment for a period of up to 18 months.
3. During this period Dr. Stephen will retain her present salary and other employment conditions under her existing contract of employment but will not be referred to as a consultant.
4. During the said period Dr. Stephen will undertake three secondments as follows:
1. in general medicine in wards 14 and/or 15 of Ninewells Hospital, Dundee;
2. in medicine for the elderly at the Royal Victoria Hospital, Dundee; and
3. in a clinical attachment in Dundee or Angus where required by an NHS trust nominated by the Trust. In this posting Dr. Stephen will have full clinical responsibility.

Each of these secondments will last for six months unless the Trust decides a shorter period is appropriate or that the third secondment is not necessary.

5. During the said period assessment will be undertaken of
1. Dr. Stephen's professional competence and
2. Dr. Stephen's professional and personal conduct at work.
1. Dr. Stephen's professional competence will be assessed objectively by an independent assessor chosen jointly by the parties from the National Panel of Assessors or, failing such agreement, nominated from the said panel by the Scottish Joint Consultants' Committee.
2. Dr. Stephen's professional and personal conduct at work will be monitored by each of the Medical Directors of the Dundee Teaching Hospitals and Dundee Healthcare NHS Trusts and their successor organisations. This monitoring will involve the Medical Directors seeking feedback from colleagues (including any mentor identified in terms of paragraph 8 of this agreement) on Dr. Stephen's conduct and considering this against reasonable standards of personal and professional conduct for a senior clinician.

1. If Dr. Stephen satisfactorily completes the retraining and assessment referred to above, she will be offered a post as a consultant geriatrician with an NHS Trust in Tayside (other than at Perth Royal Infirmary). If Dr. Stephen does not accept this offer she will resign.
2. The Annex C proceedings due to commence on 16 November 1998 will be withdrawn.
3. If the Trust decides to bring further disciplinary proceedings of any kind against Dr. Stephen, Dr. Stephen accepts that relevant grounds of complaint in those proceedings may include
1. the subject matter of the present Annex C proceedings;
2. failure by Dr. Stephen to complete satisfactorily her retraining and assessment in terms of this agreement;
3. any failure by Dr. Stephen to comply with any other term of this agreement.

[3] Paragraph 7 of the petition avers:

Counsel advised that the post offered was at Stracathro Hospital.

[4] The letter from the petitioner's solicitor to Mr. Murphy dated 31 July 2000, number 6/3 of process, stated inter alia:

1. You have not answered our points regarding the National Health Service (Appointment of Consultants) (Scotland) Regulations 1993. [There follow enquiries relating to the classification of "exempted appointment".]
2. The job description does not really refer to any identifiable job and is extremely vague as to what resources would be available to the incumbent, and it is unclear as to what the actual job consists of.
3. Insofar as the description is clear, it stipulated a workload purely in the acute sector [the words in italics were apparently inserted in the principal copy of the letter sent to Mr. Murphy, although not appearing in the file copy number 6/3 of process] which is suitable for two consultants rather than one. There is no timetable as to when the second consultant will be appointed.
4. So far as can be ascertained from the job description, it appears to describe ...a single-handed community geriatrician post whose holder would also have responsibility for running an acute service. As such, it would appear to fail the acceptability criteria of SHAS, British Geriatric Society, and Royal College of Physicians.
5. Whilst our client appreciates the difficulty faced by the management of the Trust in speculating as to the position after the acute services review, our client feels that the vagueness which this has caused to be imported into the job description ... makes the job description almost completely worthless. Our client questions whether it is acceptable to be creating a new consultant post at this time before the future of Stracathro Hospital and the future shape of geriatric service in the area is known. Our client appreciates that this is not the fault of the Trust, but it would appear that the logical sequence of events would be for the acute services review to take place and the consultant to be appointed to cover responsibilities ... identified in the acute services review ... with the resources identified in the review. Our client considers that to appoint a consultant at this stage where there is effectively no geriatric service in Angus and then expect that consultant to build up the service in advance of the acute services review is completely inappropriate.
6. For the reasons given above, our client considers that as a professional person she cannot accept responsibility to patients without knowing what resources are available to assist her to meet the needs of these patients. To be blunt, our client does not think it would be safe either for her professionally or, more importantly for patients, for her to take on board this post, given the extreme vagueness as to the resources.
7. Following on from number 6 above, our client is still concerned that, although you have now assured her that Doctor Roberts has verbally "supported" the job description, there is no suggestion that the job description has been validated in any way by the National Panel as would be normal for a consultant post. Our client would certainly feel happier as regards number 6 above if you could provide us with a detailed written statement from Doctor Roberts, confirming that she considers our client's professional misgivings to be misplaced ..."

Paragraph 8 of the petition avers:

[5] The petitioner's solicitor responded by letter dated 9 August 2000 number 6/4 of process, stating inter alia:

Paragraph 9 of the petition avers:

A copy of Mr. Murphy's letter dated 11 August 2000 was lodged in process as number 6/5 of process.

[7] Accordingly the respondent's position was that the petitioner's employment should terminate on 15 August 2000, the date of the hearing in the vacation court.

[8] Counsel for the petitioner submitted that there was a prima facie case of wrongful conduct on the part of the respondent, and that the balance of convenience favoured the granting of the interim interdict sought.

[9] Prima facie case: It was submitted that the pursuer had been employed for sixteen years as a medical practitioner specialising in geriatrics. The NHS Circular no.1990 (PCS) 8, number 6/1 of process, accordingly applied to her. Annex C concerned serious disciplinary cases involving the professional conduct and professional competence of doctors such as the petitioner; Annex B related to less serious disciplinary matters involving professional conduct or competence.

[10] The petitioner had been suspended in 1996, but remained employed in terms of her contract of employment. She continued to receive a salary.

[11] Paragraph 9 of the Minute of Agreement, number 6/2 of process, provided that the petitioner would be offered a post, and that if she did not accept the post, she would resign. Paragraph 11 of the Minute of Agreement provided that the petitioner accepted that "[if] the Trust decides to bring further disciplinary proceedings of any kind against [the petitioner, the petitioner] accepts that relevant grounds of complaint in those proceedings may include ...(I) the subject matter of the present Annex C proceedings; (II) failure by [the petitioner] to complete satisfactorily her retraining and assessment in terms of this agreement; (III) any failure by [the petitioner] to comply with any other term of this agreement." The petitioner had been offered a post as a consultant geriatrician at Stracathro Hospital. She had formed the view that the offer was not one which could reasonably be described as a "post as a consultant geriatrician". Her reasons were set out in her solicitors' letter dated 31 July 2000, number 6/3 of process. Her concerns included the vague job description and the fact that the intention was to have two consultants but there was no timetable indicating when the second consultant would be appointed. There had been a meeting to address her concerns, but no consensus had been reached. There had been a further exchange of letters, including the letter from Mr. Murphy of Human Resources dated 11 August 2000, number 6/5 of process.

[12] It was submitted that in treating the petitioner as having "resigned", and by seeking to terminate her employment that day, 15 August 2000, the respondent was acting unlawfully. It was the petitioner's position that she had not resigned. The respondent was accordingly dismissing her. The respondent claimed that the petitioner was in breach of paragraph 9 of the Minute of Agreement. Thus the respondent was in effect alleging conduct amounting to a serious disciplinary matter requiring the application of the procedures in Annex C of the circular. In terms of paragraph 11 of the Minute of Agreement, any failure by the petitioner satisfactorily to complete her retraining and assessment in terms of the agreement, or any failure by her to comply with any other term of the agreement, were accepted to be relevant grounds of complaint in further disciplinary proceedings of any kind which the respondent decided to bring against the petitioner. The respondent was alleging a failure on the part of the petitioner to comply with the terms of paragraph 9 of the Minute of Agreement. The respondent's remedy was as outlined in paragraph 11 of the Minute of Agreement. Accordingly it was unlawful for the respondent to seek to act otherwise than in accordance with the circular.

[13] Counsel for the petitioner added that he anticipated that the respondent might raise a question of the competency of the interim interdict sought. He referred to Anderson v Pringle of Scotland Ltd. [1998] I.R.L.R. 64, where employers selected an employee for redundancy otherwise than in accordance with a "last in, first out" agreement with his union. The employee sought interim interdict, arguing that the terms of that agreement were incorporated into his contract of employment and he was entitled to insist on the last in, first out method of selection. Lord Prosser held that the employee was entitled to interim interdict prohibiting the employers from selecting employees for redundancy on any basis other than last in, first out. It could not be accepted that an interdict in such terms was inconsistent with legal principles governing the grant of interdict, and that the employee's only remedy was a claim for an award of damages after the event. Although as a general proposition the courts would not use the remedies of either specific implement or interdict so as to oblige an employer to keep or take back into employment an employee whose contract of employment the employer wished to bring to an end, in principle it was a matter of circumstances rather than of law that interdict would usually be refused. Exceptions had been made by the courts in England and there was no fundamental distinction in this context between England and Scotland. In the contemporary world, intervention before dismissal had to be seen as a matter of discretion, rather than impossibility. The case was viewed as one where the mechanisms of dismissal rather than the principle of dismissal might be at the heart of the matter.

[14] Counsel for the petitioner submitted that the facts were similar in the petitioner's case. The provisions of Annex C were incorporated in the petitioner's contract of employment. She was contractually entitled to require the respondent to carry out the procedure in Annex C. She had been suspended and had been re-training. What was at issue now was the mechanism of dismissal, not whether there should be dismissal. The circumstances were sufficiently exceptional to permit relaxation of the normal rule referred to by Lord Prosser as the trite proposition that the courts will not oblige master and servant to continue in that relationship together, and that any remedy for wrongful dismissal should be damages rather than reinstatement.

[15] Counsel also referred to Peace v Edinburgh City Council [1999] I.R.L.R. 417, where a teacher was suspended pending investigation into allegations of professional misconduct. He maintained that his employers should adopt the disciplinary procedures agreed in 1975, and sought interdict prohibiting his employers from adopting disciplinary procedures first published in August 1997. Lord Penrose held that the petitioner was entitled to seek an interdict restraining his employers from proceeding with disciplinary procedures where the selection of those procedures was in breach of the employee's contract of employment. Lord Penrose referred inter alia to Anderson v Pringle of Scotland Ltd., cit. sup., and while hesitating to express unqualified agreement with Lord Prosser, concluded that certain authorities dealing with circumstances where the employee's contract had not been terminated had at least recognised that modern employment contracts might include a range of provisions which might be enforced as between employer and employee during the subsistence of the employment without prejudice to any general rule that the courts would not enforce implement or continuing implement of a working relationship as such between the employer and employee. In the result Lord Penrose held that the petition was competent, and continued the case to allow amendment and further submissions.

[16] Under reference to Peace, counsel for the petitioner reiterated that there were exceptional circumstances in the present case justifying interim interdict. One was dealing with the mechanism of dismissal in a rather unusual employment situation. Annex C could be enforced as between the petitioner and the respondent without breaching the rule that courts would not enforce the continuation of a working relationship by granting specific implement. The procedure envisaged in Annex C should be followed, and accordingly the petitioner was entitled to interim interdict prohibiting the employer from ignoring Annex C.

[17] Balance of convenience: Counsel for the petitioner submitted that the balance of convenience favoured the petitioner. Firstly, any interim interdict would preserve the status quo. The respondent would be in no worse position than it had been in since 1996. The respondent could then take steps to follow Annex C. Secondly, if interim interdict were refused, the petitioner would lose her salary. Her chance of continuous employment would disappear. Her only remedy would be unfair dismissal. The disadvantage to the employee would be considerably greater than any suffered by the employer.

[18] Counsel for the respondent invited me to refuse the petitioner's motion. He submitted that no prima facie case had been made out, and that the balance of convenience did not favour the petitioner. If, contrary to his submissions, interim interdict were to be granted, there should be inserted in the interlocutor a qualification, namely "reserving the right of the respondent to cease payment of salary in terms of the Minute of Agreement".

[19] No prima facie case: Counsel submitted that the petitioner had not made out sufficiently exceptional circumstances to justify the granting of interim interdict. The tentative complaints concerning whether the post offered was truly a consultant's post, or whether the job description was too vague, did not provide an adequate basis for interim interdict. In relation to paragraphs 3, 4, and 5 of the petitioner's solicitors' letter of 31 July 2000, number 6/3 of process, the petitioner was accredited with specialist skills in geriatrics, but not in acute care. It was unthinkable that she would be asked to provide acute services. Accordingly if she thought that she would be asked to do so, she was labouring under a misapprehension. It had been made clear that the workload justified two consultants, and an undertaking had been given to look for a second consultant as soon as the petitioner accepted the post. In relation to paragraph 1 of the letter of 31 July 2000, the fear there expressed was misconceived. The National Health Service (Appointment of Consultants)(Scotland) Regulations 1993 concerned procedure for approving a consultant's post in respect of appointments after 1993: it did not affect the petitioner, who had been appointed in 1984.

[20] In relation to paragraph 7 of the letter of 31 July 2000, the National Panel was a panel of specialists. It was their function to consider the parameters of posts within the Health Service. Dr. Roberts was the panel's specialist in geriatrics. Because of the petitioner's personal circumstances (i.e. because of the considerable friction which had been generated between herself and her professional and nursing colleagues), and because of the local conditions at Stracathro Hospital, the post was a rather special one, tailored to meet a certain situation. As was set out in paragraph 5 of a letter from the respondent to the petitioner's solicitors dated 7 August 2000, number 6/6 of process, " ...Dr. Roberts had seen the final version of the job description. Whilst the BGS does not support community geriatrician posts in principle, given the current position in Angus, and also [the petitioner's] background, Dr. Roberts was willing to support the proposed job description."

[21] It was therefore submitted that the court could not conclude that the petitioner had not been "offered a post as a consultant geriatrician with an NHS Trust in Tayside (other than at Perth Royal Infirmary)" in terms of paragraph 9 of the Minute of Agreement.

[22] Counsel then addressed the petitioner's argument that, assuming that an offer had been made in terms of paragraph 9 which had been refused by the petitioner, such a refusal amounted to conduct requiring to be dealt with by the disciplinary procedures in the circular, and in particular Annex C. It was submitted that the circular and Annex C had no application to the current circumstances. The respondent's position was that in terms of paragraphs 5 and 9 of the agreement, if the petitioner did not accept the post offered, she was under a contractual obligation to resign. That obligation to resign could not be brought within the definition "professional skills". Accordingly the matter was not "disciplinary" in any sense. On the contrary, simple common law rules relating to breach of contract applied. The petitioner had an option to take the post offered, or not. If she did not, she had to resign. There was no disciplinary element. The motion for interim interdict was therefore based upon a misapprehension.

[23] Balance of convenience: Counsel further submitted that, even if there were any merit in the petitioner's argument so far as relating to a prima facie case, the balance of convenience did not favour the petitioner. The granting of interim interdict would have no practical consequences. The petitioner had no entitlement to a salary. While she had originally been employed as a consultant, she had been suspended, and in terms of paragraphs 2 and 3 of the Minute of Agreement she was not to resume employment in Perth Royal Infirmary: she was to re-train. Any entitlement to salary ceased when the offer of a new consultant's post was refused. The respondent had no obligation to continue paying a salary. However counsel for the respondent did not submit that the petitioner was no longer an employee: simply that in the circumstances which had arisen, she was no longer entitled to a salary. Thus the petitioner would not benefit in any practical sense from the granting of an interim interdict. Further the petitioner had alternative remedies, such as an application to an industrial tribunal, or an action for damages. By contrast, the respondent would be seriously prejudiced by the granting of interim interdict. Interim interdict would inhibit the respondent's ability to perform its statutory functions, including the provision of health care for the elderly in Angus.

[24] Qualification to any interlocutor: Finally, counsel for the respondent submitted that, esto any interim interdict were granted, it should be made subject to a saving clause, reserving the right of the respondent "to cease payment of salary to her in terms of her contract of employment as amended by the Minute of Agreement dated 17 November 1998."

[25] Prima facie case: For the purposes of interim interdict, I assumed that the respondent had indeed made the petitioner an offer of a consultant's post within the meaning of paragraph 9 of the Minute of Agreement. I was nevertheless satisfied that the petitioner had made out a prima facie entitling her to interim interdict. Both counsel agreed that the petitioner was still an "employee" of the respondent. That status is, in my view, an important one, entitling the holder prima facie to a salary as provided for in the contract of employment, and also to the benefit of the provisions of NHS Circular no.1990 (PCS) 8. If the petitioner's contract of employment is regarded as having been modified or amended by the Minute of Agreement dated 17 November 1998, I could find nothing in that Minute which, on a proper construction, stated clearly that the petitioner's salary entitlement would cease if she did not accept the offer of a consultant's post yet did not resign. Nor was there any provision suggesting that the NHS Circular no.1990 (PCS) 8 should not apply to any dispute connected with the petitioner's employment as modified by the terms of the Minute of Agreement. On one view, paragraph 11 of the Minute of Agreement appears to suggest that the respondent wished to be able to treat any failure by the petitioner to comply with the terms of the Minute of Agreement as a relevant ground of complaint in disciplinary proceedings under the NHS Circular no.1990 (PCS) 8 - in other words, as capable of constituting a disciplinary matter which had to be dealt with in terms of the Circular. Thus while counsel for the respondent contended that the petitioner's refusal to accept the post coupled with her refusal to resign, could not be regarded as a "serious disciplinary [matter] involving the professional conduct and professional competence" of the petitioner within Annex C of the Circular, in my view it was at least arguable that a failure by a medical practitioner to comply with the terms of an agreement specifically drawn up between the Trust and the practitioner in order to define the nature and content of her professional duties in certain circumstances could be regarded as a serious disciplinary matter involving the professional conduct and/or professional competence of the practitioner. Prima facie therefore the petitioner would appear to have a continuing entitlement to the mechanisms contained in the circular.

[26] With reference to the cases of Anderson v Pringle of Scotland Ltd. and Peace v Edinburgh City Council, I was satisfied that the petitioner's contract of employment had not yet been terminated, that the circumstances of the present case were exceptional, and that the petitioner was prima facie entitled to the mechanisms outlined in NHS Circular no.1990 (PCS) 8, thus rendering any other attempted method of dismissal prima facie unlawful.

[27] Balance of convenience: As indicated above, I could not find in the Minute of Agreement a clear statement that the petitioner's refusal to accept the offer of a consultant's post coupled with a refusal to resign would result in cessation of her entitlement to salary. I was not therefore satisfied that the granting of the interim interdict would have no practical consequences for the petitioner. On the contrary, I understood that the petitioner had been paid a salary ever since her suspension, and that any cessation of her salary would result in serious prejudice to her. I appreciate that the continuing dispute between petitioner and respondent is a matter for considerable concern, that it is proving expensive for the respondent, and that it is unfortunate, bearing in mind the history of the case, that the dispute appears to be about to become even more protracted. Nevertheless I was not satisfied that the expense to which the respondent would be put outweighed the prejudice which would be suffered by the petitioner. In relation to the respondent's ability to fulfil its functions in respect of the provision of health care for the elderly in Angus, bearing in mind the petitioner's refusal to accept the post offered, there seemed to be no obvious reason why the respondent could not proceed to offer the post to a practitioner other than the petitioner, and thus continue to supply the health care services necessary in Angus.

[28] In conclusion therefore, I was of opinion that the balance of convenience favoured the petitioner.

[29] As stated above, I could find no term of the Minute of Agreement stating clearly that, were the petitioner to refuse to accept a consultant's post offered in terms of paragraph 9, yet refuse to resign, her entitlement to salary would cease. I therefore make no qualification in the terms sought by counsel for the respondent.

[30] Ultimately I granted interim interdict prohibiting the respondent from terminating or treating as terminated the employment of the petitioner otherwise than in accordance with the procedures which form part of the petitioner's contract of employment, as sought in the prayer of the petition.