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

Case No HQO5X02246[2005] EWHC 2407 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 November 2005
Before
THE HON. MR JUSTICE GRAY
Between
JAN GRYF-LOWCZOWSKIClaimantHINCHINGBROOKE HEALTHCAREDefendantNHS TRUSTDefendant
JOHN HENDY QC (instructed by Radcliffes Le Bresseur) for ClaimantPHILIP HAVERS QC (instructed by Hempsons) for DefendantHearing Hearing dates: 19-24 October 2005
Judgment

The issues

[1]This case raises a question of some potential significance: whether and, if so, in what circumstances an employer may be entitled to treat a contract of employment as being frustrated in circumstances where that would deprive the employee of the protection of the disciplinary procedures for which his contract provides. There is also a question whether the employer in the present case, an NHS Trust, has effectually incorporated as part of the employee’s contract of employment the procedures recently promulgated by the Department of Health (“DoH”) which involve the National Clinical Assessment Authority (“NCAA”).[2]The issues which I am asked to decide as preliminary issues are: i) whether the contract of employment between the Claimant, Mr Jan Gryf-Lowczowski, and the Defendant, the Hinchingbrooke Healthcare NHS Trust (“the Trust”) was terminated by operation of the doctrine of frustration; and ii) if the answer to issue (i) is in the negative, to what injunctive or other relief, if any, is Mr Gryf-Lowczowski now entitled.

The parties

[3]The Trust is located at Hinchingbrooke Park in Huntingdon. At the material times the Chief Executive of the Trust was Mr Douglas Pattison. The Medical Director of the Trust from 1 May 2001 to 30 November 2004 was Mr Declan Flanagan, an ophthalmologist.[4]Mr Gryf-Lowczowski, having qualified as a doctor in 1975, became a Fellow of the Royal College of Surgeons (Edinburgh) in 1982. He had previously held various House appointments at hospitals in and around London. He then took up various surgical appointments overseas. After some years he returned to the UK in 1990 when he took up a Research Fellowship at Kings College Hospital in London. There followed two short periods as a Registrar. He was then appointed as a Consultant General and Colorectal Surgeon by the Trust with effect from 22 April 1996. He became the lead surgeon in the colorectal Unit.

The contractual background

[5]The contract of employment between the parties includes the following material provisions: “3. General Mutual Obligations … It is essential… that you and the Trust work in a spirit of mutual trust and confidence. You and the Trust agree to the following mutual obligations in order to achieve the best for patients and to ensure the efficient running of the service: to cooperate with each other; to maintain goodwill; to carry out our respective obligations in agreeing and operating a Job Plan; to carry out our respective obligations in accordance with the appraisal arrangements; to carry out our respective obligations in devising, reviewing, revising and following the organisation’s policies, objectives, rules, working practices and protocols.” … 17. Disciplinary matters Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should the Trust consider that your conduct or behaviour may be in breach of the Trust Disciplinary Policy and Procedures or that your professional competence has been called into question, the Trust will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures”.[6]The version of the contract of employment which is in the trial bundle bears the signature of Mr Gryf-Lowczowski and the date 2 October 2004. I am told by Mr John Hendy QC who appears for Mr Gryf-Lowczowski that the rate of pay stipulated in clause 20 of the agreement is that which came into effect in 2004. It is to be inferred that Mr Gryf-Lowczowski entered into a revised contract on the date which the contract bears.[7]The “Disciplinary Policy and Procedures” referred to in clause 17 of the contract would appear from the reference to be found on the last page to be based on Health Circular 90(9). The document lays down detailed procedures to be followed following allegations of misconduct, depending on the nature of the allegation, i.e. whether affecting personal conduct, professional conduct or professional competence. In cases of serious disciplinary cases involving professional conduct and professional competence, the procedure is said at paragraph 4.1.1 to be “designed to ensure that justice is done and seen to be done and injustice avoided in respect of all the parties concerned (patient, practitioner and employer).” There is provision for a preliminary investigation to be followed, if appropriate, by an investigating panel. The practitioner has the right to appear personally before the investigating panel and to be represented and to hear all the evidence to the panel. He has the right to cross-examine. In the case of consultants and others there is a right of appeal to an independent panel.[8]In December 2003 the DoH issued a document entitled “High Professional Standards in the Modern NHS” which sets out a framework for the initial handling of concerns about doctors and dentists in the NHS. On 11 February 2005 “Directions on Disciplinary Procedures 2005” were issued by the DoH. The Directions came into force on 17 February 2005. They required all NHS bodies to comply with the framework and to implement it by 1 June 2005. Health Circular 90(9) was withdrawn. According to the framework document, the new procedure effects what are described as “key changes” to the disciplinary procedures which all NHS bodies are required to implement. Chapter IV is headed “Procedures For Dealing With Issues Of Capability”. Paragraph 4 reads:
“Concerns about the capability of a doctor or dentist may arise from a single incident or a series of events, reports or poor clinical outcomes. Advice from the NCAA will help the Trust to come to a decision on whether the matter raises questions about the practitioner’s capability as an individual (health problems, behavioural difficulties or lack of clinical competence) or whether there are other matters that need to be addressed. If the concerns about capability cannot be resolved routinely by management, the matter must be referred to the NCAA before the matter can be considered by a capability panel (unless the practitioner refuses to have his or her case referred). Employers are also strongly advised to involve the NCAA in all other cases particularly those involving professional conduct”
. The requisite initial procedural steps are set out. It is provided that, if the issues of capability cannot be resolved through local action, the matter “must be referred to the NCAA for it to consider whether an assessment should be carried out and to provide assistance in drawing up an action plan”.[9]Clause 15 of the framework document provides: “The NCAA will assist the employer to draw up an action plan designed to enable the practitioner to remedy any lack of capability that has been identified during the assessment. The Trust must facilitate the agreed action plan (which has to be agreed by the Trust and the practitioner before it can be actioned). There may be occasions when a case has been considered by the NCAA, but the advice of its assessment panel is that the practitioner’s performance is so fundamentally flawed that no educational and/or organisational action plan has a realistic chance of success. In these circumstances, the case manager must make a decision, based upon the completed investigation report and informed by the NCAA advice, whether the case should be determined under the capability procedure. If so, a panel hearing will be necessary. 16. If the practitioner does not agree to the case being referred to the NCAA, a panel hearing will normally be necessary”.[10]There follow detailed provisions for any panel hearing which may become necessary. The practitioner or his representative may be present, ask questions and call witnesses. By virtue of paragraph 24 the panel has the power to make various possible decisions, including that no action is required; a written warning and termination of the contract. There is a right of appeal to an appeal panel.[11]As will appear when I come to summarise the factual history, in the present case the NCAA did not in the event conclude that Mr Gryf-Lowczowski’s performance was “so fundamentally flawed that no educational and/or organisational action plan had a realistic chance of success”. Therefore no question arose of the case manager deciding whether Mr Gryf-Lowczowski’s case should be determined under the capability procedure involving an oral hearing.[12]Mr Pattison was asked by Mr Hendy for Mr Gryf-Lowczowski what steps, if any, had been taken by the Trust to incorporate the NCAA procedures as part of its contractual relationship with Mr Gryf-Lowczowski. In answer Mr Pattison said that the framework document had been “adopted at Board level within the Trust”. He suggested that that amounted to introducing the procedures laid down in the document as terms of Mr Gryf-Lowczowski’s contract. Mr Pattison further told me that the framework had been discussed with the relevant professional bodies and that it was widely known. He did, however, concede that the Trust had not written to every consultant to seek his or her agreement to the adoption of the new procedures in the contract of employment. No such letter had been written to Mr Gryf-Lowczowski.[13]As will later appear, Mr Gryf-Lowczowski did agree to the concerns which had been expressed about his conduct being referred to the NCAA. I will have to determine at a later point in this judgment whether Mr Gryf-Lowczowski was bound by the terms of his contract of employment to agree that his case should be referred to the NCAA in accordance with the terms of the framework document and, if so, whether that impacts on the questions which I have to decide.

Concerns about Mr Gryf-Lowczowski and his clinical practice

[14]On 4 September 2003 a meeting took place attended by Mr Pattison, Mr Flanagan and Mr Gryf-Lowczowski. In the course of the meeting Mr Pattison explained that there were a number of concerns expressed by the nursing staff in endoscopy relating to him and his clinical practice. After the meeting Mr Pattison wrote to Mr Gryf-Lowczowski setting out a range of options for his consideration. Those options included an internal Trust investigation; referral to the Royal College of Surgeons (“RCS”); referral to the General Medical Council (“GMC”) and referral to the NCAA. Mr Pattison indicated that it would in his view be helpful to involve the NCAA.[15]At about this time Mr Gryf-Lowczowski sought advice from Dr Richard Dempster, the medico-legal adviser of the Medical Protection Society (“MPS”) who, according to Mr Gryf-Lowczowski, advised him that there was insufficient evidence to warrant a referral to the NCAA. On 3 October 2003 Mr Pattison wrote again to Mr Gryf-Lowczowski saying that he genuinely believed it was in his, as well as the Trust’s interests, to invite the NCAA to assist to determine the validity or otherwise of the criticisms that had been made and the concerns which had been raised. Mr Pattison wrote that if Mr Gryf-Lowczowski should decide that he was not willing to be the subject of an NCAA assessment he would “have to consider the other options open to the Trust and that it might also be necessary to consider the institution of disciplinary proceedings”. In a subsequent letter to the British Medical Association, copied to Mr Gryf-Lowczowski, Mr Pattison reiterated that both he and Mr Flanagan strongly believed that it was in the best interests of all concerned to seek external support through the NCAA. As it had not been possible to agree to involve the NCAA, the Trust would now put these matters before the GMC. That led the MPS on behalf of Mr Gryf-Lowczowski to consult solicitors, who asserted that suspension, a necessary concomitant of reference to the GMC, could not be justified. However, the Trust remained of the position that, in the absence of a mutual agreement to seek the involvement of the NCAA, the matter would be referred to the GMC.[16]Eventually at a meeting held on 15 December 2003 Mr Gryf-Lowczowski did agree to a referral to the NCAA. The written agreement to refer lists the concerns raised about Mr Gryf-Lowczowski. Those concerns included the length of time taken to complete surgical procedures; his apparently high conversion rate from laparoscopic to open procedures; the apparent difficulty in clinical decision making and in relation to mainstream procedures; the failure or refusal to follow surgical guidelines; his behaviour towards colleagues; lack of confidence in the training provided to junior staff and complaints by patients. Mr Gryf-Lowczowski is recorded as having rejected the concerns and complaints as ill-informed, misplaced and unfair. The referral letter, which is signed by Mr Pattison on behalf of the Trust, includes the following acknowledgement by him: “On behalf of the referring body, I agree to the NCAA assessing the performance of the doctor named above. I understand and accept the NCAA assessment process, including the referring body’s probable need to work with the doctor afterwards to follow up any developmental or organisational recommendations”.[17]It is worth noting that, on 22 December 2003 shortly after the parties agreed the referral to the NCAA, seven members of the colorectal cancer team, including four consultants, wrote to Mr Pattison saying that at no time had they had any cause for concern about Mr Gryf-Lowczowski’s clinical competence. The letter was endorsed by six members of the nursing staff. At an earlier stage on 16 September 2003 four middle-grade surgeons wrote expressing their opinion that Mr Gryf-Lowczowski conducted his endoscopy sessions courteously and efficiently.

The NCAA assessment

[18]The NCAA adviser responsible for the assessment was Mr Norman Johnson FRCP. There was an assessment team which included two clinical assessors, Professor John Monson and Professor Chris Marks. Paragraph 6 of the Final Report describes the assessment methods and sources of information provided to the assessors. The process took some time and it was not until September 2004 that the NCAA assessment was available in draft form. It was sent to the Trust and to Mr Gryf-Lowczowski for their respective comments. These were annexed to the assessment in its final form which is dated 29 November 2004. The report sets out the assessment findings under various heads. The most relevant is the clinical assessment which is in part supportive of Mr Gryf-Lowczowski and in part critical of him:
“The assessment identified many examples of good practice. These included above average levels of documentation in medical records and clear examples of good process of obtaining informed consent. Overall, the assessment revealed patients undergoing a range of colorectal surgery to have been subjected to appropriate processes (algorithms) of investigation and management in a manner that reflected national practice. In general these processes were timely. It was clear that Mr Gryf-Lowczowski is hard working with a very significant commitment to patient care. Audit data indicates that Mr Gryf-Lowczowski’s mortality and conversion rates are in line with his peers’. However, there has been a level of concern expressed with regard to Mr Gryf-Lowczowski’s performance of cholecystectomy. Mr Gryf-Lowczowski explained why it was that he had undertaken open cholecystectomy although this seemed other than best practice. Despite this explanation the assessors remain concerned that Mr Gryf-Lowczowski has undertaken open cholecystecomies when it was not appropriate to do so. Mr Gryf-Lowczowski has agreed not to undertake further procedures of this kind at Hinchingbrooke and the assessors’ view is that this is a correct decision in the light of the available clinical evidence. The assessors feel that Mr Gryf-Lowczowski should concentrate on colorectal surgery and not undertake upper gastro-intestinal work. Mr Gryf-Lowczowski is slower than the assessors would expect when carrying out routine operations. Mr Gryf-Lowczowski has by now been out of clinical practice for approximately ten months at the time of the writing of this report, and, whatever the other findings of this assessment, will require clinical re-entry training before he can be considered as safe to practise.”
Examples of good and poor practice are set out beneath.[19]Part D sets out the NCAA’s Recommendations which deserve to be quoted in full:
“The following recommendations are put forward by the NCAA as the basis of an action plan to be developed and taken forward by the referring organisation and doctor: Prioritised recommendations for the doctor 1. Mr Gryf-Lowczowski should not undertake either laparoscopic or open cholecystectomy. 2. Mr Gryf-Lowczowski should undertake a clinical re-entry package to allow his safe return to work and to address the concerns set out in this report. This re-entry package may include the following components: • Re-skilling at another Trust approved by the RCS for a period of between 6-12 months in the field of colorectal surgery including colonoscopy • A supervisor • A mentor • A formal “signing-off” by RCS approved trainer • Good practice in the training of junior staff • On-going review of performance at regular intervals 3. Mr Gryf-Lowczowski should not undertake any complex colorectal surgery until the successful completion of the clinical re-entry package has demonstrated that he is fit to do so. 4. Mr Gryf-Lowczowski should undertake training or other structured interventions to help him manage his anger, to improve his influencing skills and be more inclusive of his colleagues. Prioritised recommendations for the Trust 1. The trust should support Mr Gryf-Lowczowski in undertaking the above recommendations. 2. The Trust should undertake an urgent review of the structure, organisation and establishment within General Surgery. 3. The Trust should invite an appropriately qualified expert from outside the Trust to undertake an independent appraisal of the application and effectiveness of its management procedures as they relate to clinical and medical staff. 4. The Trust should arrange for a facilitated meeting (or series of meetings) to explore the breakdown in working relationships and how this can be addressed to achieve successful re-entry into the workplace”
. Prioritised recommendations for the doctor • Re-skilling at another Trust approved by the RCS for a period of between 6-12 months in the field of colorectal surgery including colonoscopy • A supervisor • A mentor • A formal “signing-off” by RCS approved trainer • Good practice in the training of junior staff • On-going review of performance at regular intervals

Prioritised recommendations for the Trust

[20]As I have indicated, annexed to the report are the comments of the Trust and Mr Gryf-Lowczowski. Mr Gryf-Lowczowski fully accepted the recommendations set out and stated his intention to comply with them fully. He did, however, have a number of factual corrections to make and he set out his answer to one of the more serious concerns about him which had not been raised with him in his discussions with the assessors. By contrast the comments of the Trust consisted mainly in a reiteration of the concerns felt about almost every aspect of Mr Gryf-Lowczowski’s practice. The Trust complained that some of the concerns had not been addressed in the assessment. Of the recommendations quoted above, the Trust commented that they appeared to be significantly at odds with the findings and conclusions of the assessment and said that the Trust remained deeply concerned that the recommendations will not resolve matters in a way that is consistent with the Trust’s primary responsibility to provide safe and effective services.[21]According to the NCAA’s handbook, the next stage of the process is to work with the doctor and employer to agree an action plan. Paragraph 3.6 explains:
“This may involve a series of meetings between the practitioner, employer/contracting body, the NCAA case manager and the NCAA adviser. If training placements are needed following the NCAA assessment, these will need to be arranged through the Deaneries and Royal Colleges with the help of the NCAA. The employer/contracting body is responsible for implementing any recommendations and for ensuring that the arrangements for signing off the completion of the programme have been fulfilled”
. Although it may not have been incumbent on him to do so Mr Gryf-Lowczowski himself made arrangements to attend at his own expense a weekly anger management course from February until June 2005. He also found someone who was prepared to act as mentor. As regards the reaction of the Trust to the NCAA report, Mr Pattison in his first witness statement makes clear that although he was keen to discuss the matter further with the NCAA and Mr Gryf-Lowczowski, he was concerned that it would not be possible to find a re-skilling position suitable for Mr Gryf-Lowczowski and that he had serious doubts whether Mr Gryf-Lowczowski would be able successfully to complete a re-skilling programme that would enable him to take up his existing post with the Trust. In his evidence Mr Pattison said that the Trust took the NCAA recommendations “very seriously”. He accepted that the key recommendation was to find a re-skilling placement. As to the other recommendations made, Mr Pattison accepted that it was Mr Gryf-Lowczowski who arranged to attend anger management sessions (at a cost to him of £2000). Mr Pattison conceded that the urgent review which the Trust had been recommended at paragraph 2 to carry out had not taken place and that the independent appraisal recommended at paragraph 3 had not been implemented either. The “facilitated meeting” to explore the breakdown in working relationships had not taken place; Mr Pattison pointed out that the time of Mr Gryf-Lowczowski’s re-entry into the working place was still unknown.

Finding a re-skilling placement

[22]As I have already recorded, Mr Pattison accepted that the key recommendation was that a placement be found where Mr Gryf-Lowczowski might be re-skilled. It is common ground that this was the vital component in the package of recommendations. It was necessary to identify another trust approved by the RCS willing to accept responsibility for re-skilling Mr Gryf-Lowczowski. Mr Pattison rightly emphasised that no trust would lightly undertake to accept a surgeon for re-skilling. Mr Pattison explained that the terms and conditions of the programme would have to be agreed with the host trust; he described the difficulties in having a doctor, particularly a surgeon, treating patients when there are serious concerns about his practice; he said that there is an important issue as to the safety of patients being treated during re-skilling. The evidence of Mr Flanagan was to a similar effect.[23]Despite these misgivings, Mr Pattison attended a meeting with the NCAA on 17 January 2005 which lasted several hours. A further meeting involving the RCS took place on 10 March 2005. According to Mr Pattison, at the latter meeting Miss Lavinia Blackett, Head of the RCS Professional Standards Unit and Miss Anne Moore FRCS, a Council member for Professional Standards, agreed to investigate the possibility of finding a trust with expertise in the relevant procedures.[24]The Trust did not itself take steps to identify another trust which would be willing and able to undertake the re-skilling of Mr Gryf-Lowczowski. This is understandable since the RCS had undertaken responsibility for that task. As it happens, however, it was Mr Gryf-Lowczowski himself who made contact with senior colleagues in the field of colorectal surgery and through Mr Kmiot, a consultant colorectal surgeon at Guy’s & St Thomas’s, obtained agreement in principle from Sir Jonathan Michael, the Chief Executive of that Trust, to his attachment to the relevant department. Mr Gryf-Lowczowski had done part of his training at Guy’s & St Thomas’s under Mr Kmiot.[25]In the meantime the MPS on behalf of Mr Gryf-Lowczowski pressed the NCAA to set up the action-planning meeting for which the NCAA’s procedures provided. It was at this point in the chronology that Mr Pattison on behalf of the Trust wrote a letter to Mr Gryf-Lowczowski headed “Strictly Private and Confidential Addressee Only” dated 13 July 2005. The letter discussed the recommendations which had been made by the NCAA and set out the actions which needed to be taken. After repeating the Trust’s concerns about the NCAA recommendations, Mr Pattison concluded his letter by requiring Mr Gryf-Lowczowski to attend a meeting on one of three dates at which there would be a discussion of Mr Gryf-Lowczowski’s future employment with the Trust. The letter concluded by saying that the discussion might result in his dismissal. What Mr Pattison did not say in that letter was that the purpose of the proposed meeting was in fact to inform Mr Gryf-Lowczowski that his contract was frustrated.[26]There followed correspondence between the MPS and the Trust seeking clarification of the position which the Trust was adopting towards Mr Gryf-Lowczowski’s employment. That correspondence eventually elicited a letter of 1 August 2005 stating that in the Trust’s view Mr Gryf-Lowczowski’s contract had been frustrated by reason of his inability to fulfil the commitments thereunder. The reaction on behalf of Mr Gryf-Lowczowski was to issue the present proceedings. The Trust has sensibly agreed not to terminate Mr Gryf-Lowczowski’s contract until after the present hearing.

Guy’s & St Thomas’s withdraw their offer of a re-skilling placement

[27]The chronology does not end with the issue of the present proceedings. The last chapter of the factual history is important because the events which fall within it are relied on by Mr Hendy as disentitling the Trust from invoking the doctrine of frustration. On 1 September 2005 the action planning meeting took place. It was attended by the NCAA, the Trust, Mr Gryf-Lowczowski and representatives of the RCS. The RCS representatives indicated that there appeared to be a potential re-skilling placement for Mr Gryf-Lowczowski with Mr Kmiot who had confirmed that there was a Clinical Fellow post that could be made available at Guy’s & St Thomas’s. The RCS representatives said they believed that Mr Kmiot had not yet agreed this placement with his medical director (Mr Baker) or the Chief Executive (Sir Jonathan). It was agreed that the possible placement at Guy’s & St Thomas’s should be pursued. The evidence of Dr Dempster was that he spoke to Sir Jonathan Michael at about this time and that he was relatively positive about the prospects of an attachment at Guy’s & St Thomas’s.[28]A few days later on 9 September 2005 the Trust, as it was required to do, sent a copy of the NCAA report to Guy’s & St Thomas’s. Mr Pattison included with his letter documents containing further information which he said he hoped would be helpful in considering the potential for a re-skilling placement with Mr Kmiot. The enclosed documents included five pages of detailed Notes compiled by the Clinical Director of the Trust, Mr Clive Quick, which had been part of the material accompanying the referral to the NCAA. The Notes were highly critical of Mr Gryf-Lowczowski. On analysis it can be seen that in a number of respects the comments made by Mr Quick are more critical of Mr Gryf-Lowczowski than were the reports of the NCAA assessors. Also enclosed was a somewhat critical preliminary assessment of five indexed cases handled by Mr Gryf-Lowczowski of which the author was Professor Schofield. Another enclosure was a copy of Mr Pattison’s “strictly private” letter to Mr Gryf-Lowczowski dated 13 July 2005, to which I have referred at paragraph 25 above and which ended with an instruction to Mr Gryf-Lowczowski to attend a meeting which Mr Pattison told him might result in his dismissal.[29]Three days later on 12 September 2005 Mr Pattison wrote to Dr Johnson, the NCAA adviser, inviting his comments on a suggestion that the two clinical assessors had not “signed off” the final report about Mr Gryf-Lowczowski. Mr Pattison wrote that, on advice, he would be writing to the two assessors, namely Professor Monson and Professor Marks. It turned out that Mr Pattison’s suggestion or suspicion was misplaced: Professor Alistair Scotland, the Director of the NCAA, told Mr Pattison by letter dated 30 September 2005 that both Professors had confirmed to the NCAA that they support the recommendation that Mr Gryf-Lowczowski should undertake a clinical re-entry package.[30]In the meantime Mr Pattison’s letter of 9 September plus enclosures had been considered at Guy’s & St Thomas’s by both the Chief Executive and the Medical Director, Mr Baker. Mr Flanagan had taken the opportunity at some stage after the letter was sent to have an hour-long meeting with Mr Baker, his opposite number, at which (as Mr Flanagan put it) he sought to reassure himself that Guy’s & St Thomas’s were in possession of the full facts concerning Mr Gryf-Lowczowski. Mr Flanagan was unable to recall the details of what he may have said to Mr Baker in support of Mr Gryf-Lowczowski.[31]In answer to Mr Pattison’s letter of 9 September Sir Jonathan Michael wrote on 27 September 2005 to say that, as a result of the advice that he had been given, he was sorry to say that Guy’s & St Thomas’s was not in a position to offer this re-training attachment to Mr Gryf-Lowczowski. He added that in their opinion the NCAA report failed to make a clear case that re-training as a colorectal surgeon was likely to have a successful outcome. There was no evidence from Mr Kmiot (or from anyone else at Guy’s & St Thomas’s) as to whether he agreed with the contents of Sir Jonathan’s letter.

The possibility of a placement elsewhere

[32]Dr Dempster of the MPS, having got wind of the fact that Guy’s & St Thomas’s were after all not going to be able to support Mr Gryf-Lowczowski, contacted Ms Moore of the RCS to ask her advice about placements. According to Dr Dempster, she reiterated that the RCS was committed to trying to find a suitable place for Mr Gryf-Lowczowski. Dr Dempster understood that the RCS would be making further enquiries about other posts. On 7 October 2005 Ms Moore confirmed in writing to Dr Dempster that the RCS was willing to assist in trying to identify a suitable placement in which Mr Gryf-Lowczowski might undertake a period of further training.[33]Differing views were expressed from the witness box as to the likelihood now of finding a trust willing to undertake the necessary re-skilling of Mr Gryf-Lowczowski. Evidence was not adduced before me but the parties tell me that there are other NHS Trusts in the UK which would have the facilities to undertake the re-skilling of a consultant colorectal surgeon. Mr Pattison was asked about the possibility of obtaining a re-skilling placement for Mr Gryf-Lowczowski. He agreed that at the time of the meeting on 20 June 2005 he had thought it was a possibility. However, when he learned that the meeting proposed for 7 July 2005 had been postponed to 1 September, the Trust became concerned. He initially agreed with the suggestion put to him that even after receipt of the letter from Guy’s & St Thomas’s of 27 September 2005 there was still a possibility of re-establishing a placement for Mr Gryf-Lowczowski. However, once his attention was drawn to paragraph 25 of the Defence (where it is pleaded that by June 2005 the Trust had taken the view that there was no realistic possibility that Mr Gryf-Lowczowski would be able to return to work), Mr Pattison altered his position somewhat: he said that there was no realistic possibility of obtaining a re-skilling placement for Mr Gryf-Lowczowski.[34]On the other hand Dr Dempster, giving evidence for Mr Gryf-Lowczowski, whilst recognising that an attachment would not be organised easily, said that he took comfort from a number of factors. First, he did not expect the NCAA to make impracticable recommendations; secondly, the clinical assessors were still reported by Professor Scotland to be supportive (see paragraph 29 above); thirdly, Ms Moore of the RCS had expressed a willingness to look for other attachments (see paragraph 32 above); fourthly, Mr Gryf-Lowczowski found a real possibility himself with relatively little effort in December 2004 (see paragraph 24 above) and, fifthly, when he had spoken to Sir Jonathan Michael at the time of his meeting with him in September 2005, and before Mr Pattison spoke to him, Sir Jonathan had been relatively positive about the prospects of an attachment at his Trust. Accordingly Dr Dempster expressed the view that with goodwill on the part of the Trust the prospects of finding an attachment are reasonable.

The first preliminary issue: frustration: the law

[35]After that lengthy recital of the facts, I return to the first preliminary issue, namely whether the contract of employment between the parties was terminated by the operation of the doctrine of frustration.[36]There was no disagreement between the parties as to the principles which are applicable to the determination of the question whether a contract has been frustrated. I was referred to a number of authorities, starting with Davis Contractors Limited v. Fareham Urban District Council [1956] AC 696, in which case Lord Radcliffe said at 728-729: “So perhaps it would be simpler to say at the outset that frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract… It was not this that I promised to do… There must be… such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for”.[37]That test has been applied in many subsequent cases. I need only refer to two of them. In National Carriers Limited v. Panalpina (Northern) Limited [1981] AC 675, Lord Simon said at 700:
“Frustration of a contract takes place when there supervenes an event ‘without default of either party and for which the contract makes no sufficient provision’ which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such a case the law declares both parties to be discharged from further performance”
. In J Lauritzen AS v. Wijsmuller BV [1990] 1 Lloyd’s LR 1, Bingham LJ listed the relevant propositions as follows (omitting the authorities referred to):
“1. The doctrine of frustration was evolved to mitigate the rigor of the common law’s insistence on literal performance of absolute promises. The object of the doctrine was to give effect to the demands of justice, to achieve a just and reasonable result, to do what is reasonable and fair, as an expedient to escape from injustice where such would result from enforcement of a contract in its literal terms after a significant change in circumstances. 2. Since the effect of frustration is to kill the contract and discharge the parties from further liability under it, the doctrine is not to be lightly invoked, must be kept within very narrow limits, and ought not to be extended. 3. Frustration brings the contract to an end forthwith, without more and automatically. 4. The essence of frustration is that it should not be due to the act or election of the party seeking to rely on it. A frustrating event must be some outside event or extraneous change of situation. 5. A frustrating event must take place without blame or fault on the side of the party seeking to rely on it.”
[38]None of the cases mentioned so far was in the field of employment law. It is, however, common ground that the same principles apply. I was referred to a number of authorities showing how the doctrine has operated in the context of the relationship between employer and employee. I do not need to refer to all of them.[39]In Marshall v. Harland & Wolff Limited [1972] IRLR 90 NIRC, Sir John Donaldson listed the considerations relevant to determining the question if performance was impossible or radically different. They include the terms of the contract; how long the employment is likely to last in the absence of sickness; the nature of the employment (whether the employee is the only person employed in that capacity and the need of the employer to fill the post); the nature of the incapacity and for how long it has continued and the prospects of recovery and the period of past employment.[40]The test which was applied in Hebden v. Forsey & Son [1973] ICR 607 at 609 was for the court to ask “was the employee’s incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and accepted by the employer under the agreed terms of his employment?” That test was applied in Notcutt v. Universal Equipment Co (London) Limited [1986] 1 WLR 641, where the employee, a skilled workman, suffered a coronary infarct as a result of which he was unable to work again. He had been employed by the same employer for 25 years; his contract provided that no remuneration would be paid when he was absent from work because of sickness. The court held that the fact that the employee had become totally incapacitated from performing the contract “was outside the scope of the contract properly construed”. Accordingly the contract of employment was held to be frustrated notwithstanding that it was terminable by the employer by short notice.[41]In Tarnesby v. Kensington & Chelsea and Westminster AHA [1981] IRLR 369 the employee was a doctor who had been suspended by the GMC from the medical register for a period of 12 months, a circumstance which the employing health authority claimed was an event which frustrated the contract. That claim was rejected by the House of Lords because the contract came to an end by operation of law (viz the statutory requirement that a consultant be “fully registered”). Mr Hendy relies on a dictum of Lord Lowry at 619G-H:
“I would finally observe that, in my view, this is not a case of frustration as that term is understood in the law of contract. The Appellant’s suspension from the register was not an unforeseen or unprovided-for event brought about by legislation or otherwise but (as erasure had always been) was a contemplated misfortune the effect of which was clearly preordained”
. That indicates, says Mr Hendy, not just that an inability to perform duties for 12 months is insufficient to frustrate an employment contract at common law but more importantly that a foreseen, provided-for and contemplated misfortune does not frustrate such a contract.[42]Mr Philip Havers QC for the Trust referred me to a decision of Wood J in the EAT, namely Williams v. Watson’s Luxury Coaches Limited [1990] IRLR 164. He held that the following principles could be derived from the decided cases:
“First, that the court must guard against too easy an application of the doctrine, more especially when redundancy occurs and also when the true situation may be a dismissal by reason of disability. Secondly, that although it is not necessary to decide that frustration occurred on a particular date, nevertheless an attempt to decide the relevant date is far from a useless exercise as it may help to determine in the mind of the court whether it is really a true frustration situation. Thirdly, that there are a number of factors which may help to decide the issue as they may each point in one or other direction… (i) the length of the previous employment; (ii) how long it had been expected that the employment would continue; (iii) the nature of the job; (iv) the nature, length and effect of the illness or disabling event; (v) the need of the employer for the work to be done, and the need for a replacement to do it; (vi) the risk to the employer of acquiring obligations in respect of redundancy payments or compensation for unfair dismissal to the replacement employee; (vii) whether the wages have continued to be paid; (viii) the acts and the statements of the employer in relation to the employment, including the dismissal of, or failure to dismiss, the employee; and (vix) whether in all the circumstances a reasonable employer could be expected to wait any longer. To these we would add the terms of the contract as to the provisions for sickness pay, if any, and also a consideration of the prospects of recovery. Fourthly… the party alleging frustration should not be allowed to rely upon the frustrating event if that event was caused by that party – at least where it was caused by its fault”
.

The parties’ submissions

[43]The first contention advanced by Mr Hendy on behalf of Mr Gryf-Lowczowski is that on the evidence it cannot in this case be said that, in the words of Lord Radcliffe in Davis, “a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract”. Mr Hendy submits that there was in the present case no unforeseen supervening event rendering performance impossible or radically different. So long as re-skilling remains a possibility, it cannot be said that the contractual obligations undertaken by Mr Gryf-Lowczowski have become incapable of being performed. If the re-skilling proves successful, Mr Gryf-Lowczowski will be able to resume his professional duties as a colorectal surgeon.[44]Mr Hendy further maintains that the contract makes specific provision for the circumstances which have arisen in the present case, namely an investigation of the allegations to be followed, if necessary, by a hearing to determine the truth or otherwise of the allegations. Subject to any appeal, the outcome may be reinstatement, suspension or termination of the contract. In these circumstances it is submitted on behalf of Mr Gryf-Lowczowski that the doctrine of frustration cannot be invoked by the Trust because the contract provides for the events which have supervened. The case for Mr Gryf-Lowczowski is that the Trust is invoking the doctrine of frustration in order illegitimately to sidestep the disciplinary provisions in the employment contract.[45]Mr Havers for the Trust argues that the position has now arisen where Mr Gryf-Lowczowski has become incapable of carrying out his obligations under the contract without first undergoing re-skilling. Mr Havers asserts that Mr Gryf-Lowczowski has accepted that re-skilling must take place in order for him to be able safely to treat patients. There is, according to Mr Havers, no realistic possibility that Mr Gryf-Lowczowski will in the future be able to undertake re-skilling. Mr Havers draws attention to the following factors: that Mr Gryf-Lowczowski is one of only two surgeons at the Trust specialising in colorectal surgery; he has been absent from work on special leave since December 2003 and there is no realistic prospect that he will ever be able to return to work; the employer needs the work to be done and will have to find a replacement to do it. In all the circumstances a reasonable employer could not be expected to wait any longer.[46]Mr Havers refutes the suggestion that the contract of employment makes provision for the events which have occurred. His case is that there is here no scope for the investigation contemplated by the contract of employment, since Mr Gryf-Lowczowski has accepted (in the context of the NCAA process) that he cannot safely return to work unless he has first been re-skilled. That being so, Mr Havers contends that no purpose would be served by invoking the disciplinary procedures. The NCAA having accepted that Mr Gryf-Lowczowski cannot safely return to work, the disciplinary procedures incorporated in the contract of employment have simply ceased to have any application. According to the new procedures introduced by the DoH in 2005 (see paragraphs 8 to 10 above), there will be no panel hearing. The NCAA has in effect found that it is not safe for Mr Gryf-Lowczowski to continue to perform his surgical functions. It is inconceivable that the Trust should continue to employ such a doctor. The only possible outcome is termination.[47]An alternative reason advanced by Mr Hendy why the doctrine of frustration is not available to the Trust is that, to the extent (if at all) that the contract has become incapable of being performed, such a state of affairs was brought about by the “default” (the word used by Lord Radcliffe in Davis and by Lord Simon in National Carriers) or by the “blame or fault” (words used by Bingham LJ in Lauritzen) of the Trust. Mr Hendy contends that the Trust deliberately contrived to bring about a state of affairs which enabled it to say that there is now no possibility of re-skilling Mr Gryf-Lowczowski. The contention is based on a number of factors, including what is said to be an attempt to drive a wedge between the assessors and the recommendations in the NCAA assessment (see paragraph 29 above) and the sending by the Trust of its letter of 9 September 2005 to Guy’s & St Thomas’s which, to use Mr Hendy’s word, “torpedoed” the only available re-skilling opportunity.[48]Mr Havers accepts that frustration can only occur when the supervening event relied on occurred without the fault or default of the employer. However, he repudiates the suggestion that the Trust torpedoed the prospects of a re-skilling placement at Guy’s & St Thomas’s. To the contrary, it is submitted that the Trust has worked with all parties to try to resolve the matter but it has proved to be incapable of resolution. Doubts had been raised as to whether the assessors had agreed to the recommendation in the NCAA assessment. It was proper for Mr Pattison to approach them. The documents sent by Mr Pattison to Guy’s & St Thomas’s under cover of his letter of 9 September 2005 were relevant to the decision which that Trust had to make about undertaking re-skilling of Mr Gryf-Lowczowski. There was no intention on the part of Mr Pattison or Mr Flanagan to procure Guy’s & St Thomas’s to turn down the request. There is every reason to suppose that the decision to do so was arrived at after careful consideration of the position within Guy’s & St Thomas’s. Mr Havers relies on Dr Dempster’s evidence that he formed the view, having spoken to Sir Jonathan Michael, that the matter would be fairly dealt with within that Trust.

Conclusion

[49]I must first ask myself whether the Trust has discharged the burden (which Mr Havers accepts is upon it) of establishing that Mr Gryf-Lowczowski has become incapable of performing his obligations to perform his duties as a colorectal surgeon under the contract. Mr Gryf-Lowczowski has been on what is termed special leave since December 2003. So for a period which is now approaching two years he has not been performing those duties. I readily accept that the nature, length and effect of the disabling event or circumstances is one of the factors to be taken into account in determining whether a contract of employment has been frustrated. I also recognise the need of the Trust for the work to be carried out which may well entail the employment of a replacement for Mr Gryf-Lowczowski. The expense involved is considerable and the more so since Mr Gryf-Lowczowski is continuing to be paid his salary.[50]I do not think that the duration of the disability is determinative. Other factors must also be taken into account. In particular it is necessary to consider the nature and duration of Mr Gryf-Lowczowski’s employment. He is a highly trained specialist consultant surgeon. He has been employed by the Trust since 1996. If the contract were to be held to have been frustrated it is highly unlikely that he would find work as a medical practitioner within the NHS hereafter. Where the employment is of that nature and where its termination would have so catastrophic an effect, it is in my judgment reasonable to expect an employer to wait rather longer than might be the case in other circumstances. I bear in mind the dicta already quoted warning against the invocation of the doctrine of frustration too lightly.[51]The crucial question to my mind is whether there remains a realistic possibility that a placement can now be found so as to enable Mr Gryf-Lowczowski to be re-skilled and afterwards to resume his former duties with the Trust. I underline the word “now” because it seems to me that I must address the question in the circumstances which have now arisen, i.e. circumstances where Guy’s & St Thomas’s have indicated that the mooted placement with them is no longer possible. If there is a realistic possibility of a replacement, it follows that there is at least a realistic possibility that Mr Gryf-Lowczowski will in the foreseeable future be able to resume his duties as a surgeon. It is in my view nothing to the point that the Trust had claimed that the contract was frustrated months before Guy’s & St Thomas’s declined to offer Mr Gryf-Lowczowski a placement. The question must be asked and answered as of today’s date.[52]I have set out at paragraphs 32 to 34 above the evidence which bears in the question whether a realistic possibility of a re-skilling placement now exists. In my judgment such a realistic possibility does now exist. I think there is force in the point made by Dr Dempster that neither the NCAA nor the assessors, Professors Monson and Marks, would have recommended re-skilling if they had not considered that a realistic possibility existed of obtaining a placement. Mr Gryf-Lowczowski was quickly able to find a potential supplier of the retraining at Guy’s & St Thomas’s. The evidence suggests that Mr Kmiot was initially favourably disposed towards the idea of offering a placement. Consideration of any other trust carrying out the re-skilling was effectively put on hold for so long as the possibility of a placement at Guy’s & St Thomas’s remained open. As I understand it, no positive steps have been taken since 27 September 2005, when Guy’s & St Thomas’s withdrew, because those concerned have been awaiting the outcome of the present hearing. But Ms Moore of the RCS is plainly willing to seek another trust in the new circumstances.[53]I do not of course overlook the views expressed by both Mr Pattison and Mr Flanagan in their evidence. But it is right that I should bear in mind that neither of them has hitherto been involved in the process of seeking out a trust prepared to undertake re-skilling. That task was, appropriately in my view, left to the RCS. Moreover, as I have noted in paragraph 33 above, Mr Pattison was initially inclined to accept that even today the possibility remains that another trust will be found. In my view the prospects remain more optimistic that he would allow. In all the circumstances my conclusion is that the obligations of Mr Gryf-Lowczowski under the contract of employment have not, as yet at least, become incapable of performance since a realistic possibility remains of another trust being found which will agree to re-skill him so as to enable him in due course to resume his duties under the contract.[54]Such being my conclusion, it is not strictly necessary for me to express a view about the further reasons advanced by Mr Hendy for saying that the doctrine of frustration is not available. I should nevertheless state my conclusions in relation to those further reasons.[55]The first point taken by Mr Hendy is that the contractual provisions are apt to cater for the circumstances which have arisen in regard to the alleged incapability of Mr Gryf-Lowczowski to perform his contractual duties. The position is complicated by the fact that the case for Mr Gryf-Lowczowski is that provisions which apply are those set out in paragraph 7 above, whereas it is argued for the Trust that those provisions have been superseded by the disciplinary procedures introduced by the DoH in 2005.[56]The evidence is that the version of the contract of employment which is in the trial bundle was signed by Mr Gryf-Lowczowski on 2 October 2004, probably when his salary was increased to the level stipulated in clause 20(1) of the contract. It is for the Trust to satisfy me that the contract was thereafter varied so as to incorporate the procedure set out in Part IV of the framework document. As stated in paragraph 8 above, the DoH directions required all NHS bodies to implement the framework by June 2005. In the ordinary way one would expect the Trust as employer to draw up a revised contract for affected staff and to submit it to them for signature. That did not happen. Mr Pattison’s evidence as to the steps which were taken within the Trust are set out at paragraph 12 above. In my judgment they fall well short of what would be required to establish that Mr Gryf-Lowczowski agreed to the variation of his contract for which the Trust contends. I should add that I reject the submission of Mr Havers that the reference in clause 7 of the contract of employment (see paragraph 5 above) to “our disciplinary or capability procedures” is to be construed as meaning “such disciplinary or capability procedures as the Trust may from time to time adopt”. The reference used in my view meant and was understood to mean that the procedures set out in the Disciplinary Policy and Procedures, based on Health Circular 90(9), were to apply.[57]It is of course true to say that, following the exertion of pressure on him by the Trust, Mr Gryf-Lowczowski did agree to the referral to the NCAA. But I find it impossible to spell out from the circumstances under which he agreed to this course an acceptance by him that Part IV of the framework was substituted for the disciplinary provisions in his contract of employment. The framework document is not and does not have the appearance of being a contractual document. Mr Havers argued forcefully that the invocation of the disciplinary provisions incorporated in the contract of employment became pointless once the NCAA had made its findings and recommendations. He submits that a termination of Mr Gryf-Lowczowski’s contract is inevitable. But the pertinent question must be whether Mr Gryf-Lowczowski is to be taken to have agreed by what he has said and done to give up the protection afforded to him by the Trust Disciplinary Procedures for Career Grade Medical Staff. I would answer that question in the negative. In my judgment the Trust are still obliged, notwithstanding the fact of the referral to the NCAA and its outcome, to observe the procedure for serious disciplinary cases which is set out in clauses 4 to 8 of that document.[58]The applicable contractual provisions being those to be found in the Disciplinary Procedures to which I have referred, I am of the clear view that they did provide for circumstances such as the alleged incapability of Mr Gryf-Lowczowski to carry out his duties. The concerns about Mr Gryf-Lowczowski’s conduct and competence felt within the Trust are in my view disciplinary problems within the meaning of paragraph 1(1) of the Disciplinary Procedures.[59]I turn to the question whether the frustrating event, i.e. the alleged incapacity of Mr Gryf-Lowczowski to perform his duties under the contract, has been brought about by the default of the Trust or, to put it another way, whether such incapacity is the fault of or to be blamed on the Trust. It is not of course suggested that the Trust is to blame for the problems which undoubtedly arose in relation to the manner in which Mr Gryf-Lowczowski was performing his duties. Rather the issue is whether the Trust is to blame for the fact that the withdrawal of Guy’s & St Thomas’s has on the Trust’s case eliminated any possibility of finding a trust to re-skill Mr Gryf-Lowczowski (although not in my view to the point where no realistic possibility exists). It is necessary to consider carefully what was done on behalf of the Trust and why it was done.[60]I should make one thing clear straightaway. As is only too well known, NHS Trusts operate under severe financial constraints. It is a prime duty of any Chief Executive, such as Mr Pattison, to ensure that scarce resources are not wasted and that so far as possible they are applied towards the care and treatment of patients. It became apparent during Mr Pattison’s evidence that a major reason why on behalf of the Trust he pressed Mr Gryf-Lowczowski to agree to referral to the NCAA was his view that following the disciplinary provisions incorporated in the contract of employment would inevitably involve the Trust in exorbitant expenditure on experts and the like. I believe that Mr Pattison perceived an NCAA assessment as being a cheaper and therefore from the point of view of the Trust a more desirable option than the disciplinary route contained in the contract of employment. He is not in my opinion open to criticism for taking that view.[61]I believe that Mr Pattison was both surprised by and disappointed at the recommendations made by the NCAA. Not being a medical man, Mr Pattison was not in a position himself to make a judgment about Mr Gryf-Lowczowski’s professional competence but I infer that he had been given to understand by others within the Trust that the likely advice of the assessment panel would be that “the practitioner’s performance is so fundamentally flawed that no educational and/or organisation action plan has a realistic chance of success” (quotation from paragraph 15 of the framework document). That was why the immediate reaction on the part of the Trust to the NCAA’s draft report was one of dismay, as is evidenced by the Trust’s comments attached to the final report (see paragraph 20 above); Mr Quick’s confidential Notes (paragraph 28 above); the approach to the NCAA assessors (paragraph 29 above) and the terms of the Trust’s letter of 13 July 2005 (paragraph 25 above). The conclusion is irresistible that great concern was felt within the Trust and in particular by Mr Pattison and by Mr Flanagan about the reskilling recommendation which carried with it the likelihood that Mr Gryf-Lowczowski would in due course resume his post with the Trust.[62]I have described at paragraph 28 above the contents of the Trust’s letter of 9 September 2005 and its enclosures. It is clear to me that anyone within Guy’s & St Thomas’s reading that letter would interpret it as a warning about the problems and difficulties which would be encountered if a re-skilling placement were to be offered to Mr Gryf-Lowczowski. It has to be borne in mind that, according to the evidence, telephone calls were made to Sir Jonathan Michael by both Mr Pattison and Mr Flanagan in the period between the sending of the letter and the reply to it on 27 September. It is true that there is no detailed evidence as to what was said in the course of those telephone conversations but I have no doubt that it would be right to infer that they were in the same vein as the contents of the letter of 9 September and its enclosures. Two questions arise. The first is whether the Trust was responsible for the decision of Guy’s & St Thomas’s not to offer a re-skilling placement. If the answer to that question is in the affirmative the second question which arises is whether it follows that the allegedly frustrating event (i.e. the absence of any realistic possibility of re-skilling taking place) can be said to have been the fault of the Trust or to have arisen as a result of a default on the part of the Trust or an event for which the Trust is to blame. As to the first question, in my view the available evidence points firmly to the conclusion that Guy’s & St Thomas’s would have offered Mr Gryf-Lowczowski a placement under the supervision of Mr Kmiot but for the intervention of the Trust by its letter of 9 September. Prior to the sending of that letter the prospects of a placement had seemed good. I do not consider that the terms of the NCAA report itself would have put off Guy’s & St Thomas’s. The report had good as well as bad things to say about Mr Gryf-Lowczowski’s performance. But the enclosures to the letter would in my judgment be bound to have prejudiced the chances of Mr Gryf-Lowczowski being accepted for re-skilling. I think there is force in the submission made by Mr Hendy that it was incumbent on the Trust as Mr Gryf-Lowczowski’s employer to present a balanced picture to Guy’s & St Thomas’s. The picture in fact presented by the letter and its enclosures was in my opinion anything but balanced. For instance, no mention was made of the documents referred to in paragraph 17 above which evidenced clear support for Mr Gryf-Lowczowski on the part of a considerable number of his professional colleagues. It has to be borne in mind that the Trust had agreed both by the terms of clause 15 of the framework document (see paragraph 9 above) and by the referral letter (quoted at paragraph 16 above) to accept the NCAA process.[63]In my view the actions of the Trust, including but not limited to the sending of the letter of 9 September 2005 together with its enclosures, were to blame for the loss of the prospect of retraining at Guy’s & St Thomas’s. To put it another way, the loss of that opportunity was due to the fault or default of the Trust. If it had arisen, I would have found that the Trust was disentitled from relying on the doctrine of frustration on this further ground.

The second preliminary issue: injunctive relief

[64]I can deal with the second preliminary issue more shortly. It is whether, assuming (as I have found) the contract was not frustrated, Mr Gryf-Lowczowski is entitled to some injunctive relief and, if so, what relief. I should say at the outset that, if I am persuaded that injunctive relief is appropriate, the parties have sensibly said that they will endeavour to agree either undertakings or a declaration reflecting any finding as to Mr Gryf-Lowczowski’s entitlement.[65]It is often said, citing the dictum of Lord Denning MR in Hill v. Parsons [1972] 1 Ch 305 at 314B, that the court will not enforce a contract of employment by injunction. It is, however, common ground that the court may grant an injunction which will have that effect, although only in limited and special circumstances. The question is whether this is such a case.

The parties’ submissions

[66]Mr Hendy submits that if (as I have found) the disciplinary provisions expressly incorporated in the contract of employment subsist, an injunction should be granted which would in effect compel the Trust to carry out its contractual obligations under those provisions. In support of that submission Mr Hendy has cited a number of authorities where injunctive relief was granted, including Hill v Parsons; Jones v. Lee and Guilding[1980] ICR 310; Irani v. Southampton and Southwest Hampshire Health Authority [1985] ICR 590; Robb v. London Borough of Hammersmith and Fulham [1991] IRLR 72 and Powell v. London Borough of Brent [1987] ICR 176.[67]Mr Hendy submits that the object of the injunctive relief sought is not to restore Mr Gryf-Lowczowski to active employment but rather to prevent any dismissal being put into effect prior to the conclusion of the relevant contractual procedures. It is accepted that Mr Gryf-Lowczowski will not resume his contractual duties until then. Such being the nature of the relief sought, it is submitted that it matters not that the mutual trust and confidence ordinarily necessary to support the workable continuation of employment is absent. Although the Trust has disclaimed any intention to do so until after this judgment has been delivered, Mr Hendy submits that it is crystal clear that, absent an injunction, the Trust would summarily dismiss Mr Gryf-Lowczowski. The injunction is sought in order to prevent that happening without Mr Gryf-Lowczowski having first had the chance to counter the allegations against him in the manner contemplated by the disciplinary provisions. It would be wrong, submits Mr Hendy, to leave Mr Gryf-Lowczowski to his remedy in damages for unfair or wrongful dismissal since the damages recoverable under either head are plainly inadequate. Relying on Barros D’Sa v. University Hospital Coventry and Warwickshire NHS Trust [2001] IRLR 691, Mr Hendy submits that the court should be astute to guard against an employer circumventing agreed disciplinary procedures.[68]Mr Havers contends on behalf of the Trust that none of the authorities relied on by Mr Hendy apply to the circumstances of the present case. In particular he says that Irani is distinguishable because there was no complaint about the professional competence of the claimant. He contrasts that with the position in the present case, where Mr Gryf-Lowczowski has fully accepted the recommendations of the NCAA report. Mr Havers accepts that in Robb Morland J granted an injunction restraining the employer from dismissing the employee without first following the disciplinary procedures laid down in that contract. However, he points out that that was an application for interlocutory relief in circumstances where it was held that the employee should have the opportunity of justifying himself under the procedure contained in the contract of employment. In the present case Mr Havers submits that it is unrealistic for Mr Gryf-Lowczowski to say that he wants to ventilate his case because he has accepted the recommendations made by the NCAA.[69]Mr Havers reminds me that the granting of an injunction is a discretionary remedy. He draws attention to a number of what he suggests are compelling reasons why the instant contract should not be enforced by injunction. Firstly he says that one consequence of maintaining Mr Gryf-Lowczowski’s contract will be the need for the Trust to continue to employ locum consultants at a very significant additional cost. The Trust would in addition be obliged to continue to pay Mr Gryf-Lowczowski. Maintaining the contract will further prolong what Mr Havers describes as the present unsatisfactory situation at the hospital. Another surgeon has had to take on the additional burden of absorbing work which would otherwise have been done by Mr Gryf-Lowczowski. Mr Havers contends that damages would be an adequate remedy in the unlikely event that any dismissal were to be held to be wrongful or unfair.

Conclusion

[70]The starting point is that injunctive relief to compel a party to comply with a contract of employment will be appropriate only in unusual circumstances. As Megarry J pointed out in Chappell v. Times Newspapers Limited [1975] IRLR 90, one of the principal reasons why the court felt able to grant an injunction in Hill v. Parsons was that there was still confidence between employer and employee in that case. By contrast in the present case the relationship of trust and confidence between the Trust and Mr Gryf-Lowczowski has self-evidently broken down. But it does not appear to me to follow that on that account no injunctive relief should be granted. In Irani the court granted an injunction in favour of the claimant, an ophthalmologist, restraining the employer from implementing its termination notice without first exhausting the disciplinary procedures laid down in the Whitley Council. I take Mr Havers’ point that there was in that case no complaint about the professional competence of the claimant. In that respect Irani is distinguishable from the instant case. Nonetheless I note that Warner J expressed concern at the ability of the employer to “snap its fingers” at the rights of its employees under their contracts. As I have found, Mr Gryf-Lowczowski had a right to require the Trust to abide by the disciplinary procedures in his contract.[71]In Barros v. D’Sa the employee, like Mr Gryf-Lowczowski a consultant surgeon, obtained an injunction restraining him employer from relying at a disciplinary hearing on material which had not been the subject of any prior finding by the inquiry panel. The fact that there had been a breakdown of trust and confidence was held not to be relevant. The effect of the injunction which was granted in that case was to require the employer to adhere to the terms of the contractual inquiry process.[72]But the case which is closest on its facts to the present case is Robb. In that case the employer, a local authority, became concerned about the performance by the employee, a finance director, of his duties. Having invoked the contractual disciplinary procedure, the employer then abandoned the investigation and purported summarily to dismiss him. Morland J granted an interlocutory injunction restraining the employer from giving effect to the dismissal notice. At 522 he said:
“… I asked [counsel for the employer] what relevance the Defendant’s lack of trust and confidence in the Plaintiff’s capability to do his job had to do with the workability of the paragraph 41 procedure if ordered by the court. He was unable to give me an answer that convinced me that it had any relevance. In my judgment there is no rule of law or practice which prevents me from giving the relief sought if the circumstances of this particular case merit it, applying the principles enunciated in American Cyanamid v. Ethicon [1975] AC 396, 507. As there was much discussion in argument about the evidence of loss of trust and confidence, it is right that I should refer to it; indeed, [counsel for the employer] went so far as to suggest that the Defendants had no genuine belief that they lacked trust and confidence in the Plaintiff’s capability to do his job. The Plaintiff was being made a scapegoat for the consequences of the interest swaps. Although it is not for me to make any findings of fact in these interlocutory proceedings, there is ample evidence that the Defendants’ assertion is genuine and there is very cogent evidence of loss of trust and confidence”
. Nevertheless, as I have said, an injunction was granted.[73]In my judgment the fact that trust and confidence between employer and employee have broken down in the present case is no bar to injunctive relief. There is no question of Mr Gryf-Lowczowski returning to work until he has been re-skilled. As in Robb, the disciplinary provisions which I have held to be applicable are clear and the Trust has not followed them.[74]Mr Havers argues that it would be pointless to do so since the NCAA has, with Mr Gryf-Lowczowski’s agreement, carried out an assessment and concluded that he should undertake a clinical re-entry package to allow his safe return to work. I agree that it would be inappropriate to grant injunctive relief compelling a party to perform a contractual obligation where it would be pointless to do so. But for two reasons I am not persuaded that, at least at this point in time, an injunction would be pointless. As I have already held (see paragraph 53 above) there remains a realistic possibility that a re-skilling placement will be found for Mr Gryf-Lowczowski. It would be wrong to assume that, following re-skilling, Mr Gryf-Lowczowski will not be able to return to work at the Trust. The grant of injunctive relief would enable the recommendations of the NCAA, by which the Trust agreed to abide, to be carried out. The second reason why I am unconvinced by Mr Havers’ argument is that, despite the NCAA’s findings, it would be wrong to deprive Mr Gryf-Lowczowski of the disciplinary procedures to which he is (as I have held) contractually entitled. As Morland J said in Robb at 523:
“I now conclude as to why in my judgment, the Plaintiff has established that he is entitled to the injunctive relief sought… (3) Without the injunction sought, the Plaintiff has lost the opportunity of ventilating his case and justifying himself at the hearings and enquiries under the paragraph 41 procedure… (5) Injunctive relief now restores the Plaintiff to his position and entitlement to the paragraph 41 procedure which the Defendants unlawfully deprived him of in the last week of July 1990”
. I do not accept that Mr Gryf-Lowczowski has forfeited the right to the protection of the disciplinary procedures by agreeing to the recommendations of the NCAA.[75]Mr Havers contends that, rather than grant injunctive relief, Mr Gryf-Lowczowski should be left to his remedy in damages in the event that the Trust were to dismiss him without complying with the disciplinary procedures. I accept that this argument is open to the Trust, although it has perhaps less force in the present case than it did in Irani and Robb where the injunctions granted were interlocutory so that the American Cyanamid principles applied.[76]I readily accept that the cost to the Trust of maintaining Mr Gryf-Lowczowski’s contract will be very substantial: it will be necessary to continue to employ locum consultants as well as to continue to pay Mr Gryf-Lowczowski. I also accept that the consequence of maintaining the contract will be to prolong the present unsatisfactory situation at the hospital, where another general surgeon has had to undertake the additional burden of absorbing work which would otherwise have been done by Mr Gryf-Lowczowski. On the other hand, if no injunctive relief is granted and if (as seems likely) the Trust does summarily dismiss Mr Gryf-Lowczowski, he would be confined to a claim for damages for wrongful or unfair dismissal. The former would be limited to the contractual notice period of three months; the latter is statutorily capped at £56,000. I am unable to accept that in the circumstances of the present case such a remedy in damages is adequate. If Mr Gryf-Lowczowski is dismissed, he will be deprived of the disciplinary procedures which would provide him with the opportunity to justify and vindicate himself in that context. What is more, Mr Gryf-Lowczowski would lose the congenial (albeit stressful) employment he has had with the Trust and might well find himself unable to find alternative employment at least within the NHS.[77]In all these circumstances I have concluded that injunctive relief is in principle appropriate in this case. In the light of the parties’ agreement referred to at paragraph 64 above, I will hear submissions as to the form of the order which the court should make.

Cited in 5 later judgments