FRUSTRATION

Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust: [2005] EWHC 2407 (Admin)

QBD: Gray J: 2 November 2005

In 1996 the claimant was employed by the defendant trust as a consultant surgeon. His contract of employment provided that, if the trust considered that his professional competence had been called into question, the trust would resolve the matter through its disciplinary or capability procedures, by way of a preliminary investigation, to be followed, if appropriate, by an investigating panel, at which the claimant would have the right to be present, to be represented and to hear all the evidence. In September 2003 the trust informed the claimant that a number of concerns had been expressed by the nursing staff relating to him and his clinical practice. In December 2003 the claimant agreed to the trust's suggestion that the matter should be referred to the National Clinical Assessment Authority, and he was placed on special leave pending completion of the authority's assessment. In November 2004 the assessment was completed. It was partly supportive and partly critical of the claimant and its action plan contained the recommendation that the claimant should undertake re-skilling at another trust for a period of six to twelve months in order to allow his safe return to work. The claimant obtained agreement in principle from another trust to undertake the recommended re-skilling placement. However, in August 2005, the defendant trust informed the claimant that in its view his contract had been frustrated by reason of his inability to fulfil the commitments thereunder. The claimant issued proceedings seeking injunctive relief to prevent the trust terminating his contract of employment without fulfilling the contractual disciplinary procedures. Subsequently, the trust, as it was required to do, sent a copy of the claimant's assessment to the trust which had agreed in principle to offer the re-skilling placement, but it also included other material, some of which was highly critical of the claimant, and shortly thereafter the offer of a re-skilling placement was withdrawn.

Preliminary issues were directed to be tried as to (i) whether the contract of employment between the claimant and the trust had been terminated by operation of the doctrine of frustration; and (ii) if not, what injunctive or other relief, if any, the claimant was entitled to.

Gray J held:
(1) The length of time for which the claimant had been on special leave and, therefore, not performing his duties was not determinative of whether his contract of employment had been frustrated, since it was only one of the factors to be taken into account. Given that the claimant was a highly trained specialist consultant surgeon who had been employed by the trust since 1996 and, if his contract were to be held to have been frustrated, it was highly unlikely that he would find work as a medical practitioner within the NHS, it was reasonable to expect his employer to wait rather longer than might be the case in other circumstances before invoking the doctrine of frustration. Since, on the evidence, there was still a realistic possibility that a placement could be found so as to enable the claimant to be re-skilled, there was at least a realistic possibility that the claimant would in the foreseeable future be able to resume his duties as a surgeon. Accordingly, the obligations of the claimant under the contract of employment had not, as yet at least, become incapable of performance. Further, the trust was to blame for the withdrawal of the re-skilling placement that had been offered to the claimant and, in those circumstances, would be disentitled from relying on the doctrine of frustration.

(2) The fact that the relationship of trust and confidence between the trust and the claimant had broken down was no bar to injunctive relief since there was no question of the claimant returning to work until he had been re-skilled. The grant of injunctive relief would not be pointless since it would be wrong to assume that, following re-skilling, the claimant would not be able to return to work at the trust and the grant of injunctive relief would enable the recommendations of the NCAA, by which the trust had agreed to abide, to be carried out, and, further, it would be wrong to deprive the claimant of the disciplinary procedures to which he was contractually entitled since he had not forfeited the right to the protection of those procedures by agreeing to the recommendations of the NCAA. If no injunctive relief was granted and the trust dismissed the claimant, damages would be an inadequate remedy, the claimant would be deprived of the opportunity to justify and vindicate himself, he would lose the congenial employment he had had with the trust and might well be unable to find alternative employment, at least within the NHS. Accordingly, in all the circumstances, injunctive relief was appropriate.

Order accordingly.

Appearances: John Hendy QC (Radcliffes Le Brasseur) for the claimant; Philip Havers QC (Hempsons) for the trust.