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Incorporation of Disciplinary Policy

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[Thanks to Nadia Montraghi of Old Square Chambers for preparing this case summary]

What factors should the Court consider when deciding whether a particular provision has contractual effect? In Hussain v Surrey and Sussex Healthcare NHS Trust, the High Court held that relevant factors included: (a) the importance of the provision to the contractual working relationship; (b) the level of detail prescribed by the provision; (c) the certainty of what the provision required; (d) the context of the provision; (e) whether the provision was workable. (Paragraph 168)

Dr H brought a claim for breach of contract against the defendant Trust in respect of her exclusion from work and disciplinary proceedings being brought against her.

In respect of her exclusion, the Court held that the nature and extent of Dr H's exclusion was in breach the clause of her contract of employment requiring the Trust to give full consideration to whether she could continue in or return to work in a limited capacity or in an alternative, possibly non-clinical role, pending resolution of her case. (Paragraphs 75-94)

In respect of the disciplinary proceedings, Dr H had challenged the Trust's decision to proceed with the conduct allegations only prior to any hearing in respect of the capability allegations. The Court accepted that the contract of employment permitted this and that a valid decision had been made in respect of this. Whilst the Court held that the Trust had improperly exercised its discretion when referring the charges as originally drafted to a conduct hearing on the basis that the charges could not properly be regarded as limited to conduct, the Court did not find that referring the charges as later amended to a conduct hearing would be in breach of Dr H's contract of employment. (Paragraphs 95-115)

A significant part of the judgment relates to the incorporation of the relevant disciplinary policy into Dr H's contract of employment. The Court held that the disciplinary policy was apt for incorporation and that key provisions relating to exclusion from practice and how to proceed where issues of both conduct and capability were involved were incorporated into Dr H's contract of employment.