INDUSTRIAL DISPUTE - Case of the week: Lim v Royal Wolverhampton Hospitals NHS Trust

Case of the week: Lim v Royal Wolverhampton Hospitals NHS Trust

By Guy Lamb on 22 Nov 2011 in Discipline and grievances, Employment law

Lim v Royal Wolverhampton Hospitals NHS Trust

FACTS

Dr Lim was a consultant anaesthetist at the Royal Wolverhampton Hospitals NHS Trust. Bullying complaints were made against him in January 2007 and a formal investigation was carried out. Dr Lim largely admitted to the allegations and formal disciplinary action was recommended in May 2007.

Shortly after this, concerns over his professional capability were raised. These overshadowed the misconduct allegations, which were held open while malpractice investigations were concluded.

In November 2007, the death of one of Dr Lim’s patients, P, was treated as a “serious untoward incident”. Dr Lim was excluded from duty in December 2007 and four separate reports over the next year were highly critical of him. The situation was referred to the police and the General Medical Council, which formally suspended Dr Lim in November 2008. In September 2009, a report concerning 512 of Dr Lim’s other patients identified wide-ranging and deep-seated failings of a fundamental nature.

Although the trust initially referred Dr Lim’s case to the National Clinical Assessment Service (NCAS) to assess whether or not his actions had any realistic chance of success, the situation was so serious following the September 2009 report that no NCAS assessment could have avoided the need for a formal hearing. Dr Lim was invited to a hearing in January 2010 to discuss both his capability and the misconduct concerns dating back to 2006.

Dr Lim sought an injunction, claiming that:

• the NHS’s Maintaining High Professional Standards (MHPS) guidance required an NCAS assessment before holding any capability hearing; and
• allowing the trust to pursue the allegations of misconduct four years later was unfair.

DECISION

The High Court granted Dr Lim’s injunction. Various parts of the MHPS were contradictory, so precedence was given to the most recently introduced section, which required an NCAS assessment to be completed before any capability hearing.

The judge allowed the trust to pursue the misconduct allegations. Employers are under an implied obligation to conduct disciplinaries without delay but, in the unusual circumstances of this case, the trust had investigated without undue delay. Dr Lim had admitted most of the misconduct allegations and had been told throughout that they were still being pursued. Other very serious concerns about his fundamental capability had supervened and rendered it impossible for the trust to proceed with the disciplinary hearing until these had been resolved.

IMPLICATIONS

This judgment helps employers where circumstances outside of their control result in significant delays to disciplinary processes, and reminds us that a delay will not automatically lead to a finding of unfair dismissal. In practice, though, the implied duty to conduct disciplinaries without delay stands in most cases; only the very unusual facts of this case successfully kept Dr Lim’s misconduct “alive” for four years.

Written policies must be clear and consistent to avoid the uncertainty faced by the trust. Drafters should also avoid lengthy and prescriptive policies that leave employers with their hands tied. The MHPS process was onerous and ultimately the trust was bound by it.

The key message when drafting disciplinary and grievance policies is that “less is more”. Policies should not be contractual and should give employers as much flexibility as possible to avoid inadvertent breaches of contract.

Guy Lamb, partner, DLA Piper