Jan Gryf-Lowczowski v Hinchington Healthcare NHS Trust

JurisdictionEngland & Wales
Judgment Date02 November 2005
Neutral Citation[2005] EWHC 2407 (QB)
Docket NumberCase No: HQO5X02246
CourtQueen's Bench Division
Date02 November 2005

[2005] EWHC 2407 (QB)




The Hon. Mr Justice Gray

Case No: HQO5X02246

Jan Gryf-Lowczowski
Hinchingbrooke Healthcare NHS Trust

JOHN HENDY QC (instructed by Radcliffes Le Bresseur) for the Claimant

PHILIP HAVERS QC (instructed by Hempsons) for the Defendant

Hearing dates: 19–24 October 2005

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


Mr Justice Gray

The issues


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").


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


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.


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


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".


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.


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.


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".


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".


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.


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.


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...

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