Khan (Zaib) v Western Health and Social Services Trust
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] NIQB 92 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 30 July 2010 |
| Year | 2010 |
Neutral Citation No. [2010] NIQB 92 Ref:
GIL7891
Judgment: approved by the Court for handing down Delivered:
30/07/10
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
________
BETWEEN:
ZAIB KHAN
Plaintiff;
-and-
WESTERN HEALTH AND SOCIAL SERVICES TRUST
Defendant.
_________
GILLEN J
Application
[1] In this matter the plaintiff, a consultant general surgeon employed by
the defendant Trust, has brought a Notice of Motion for an interim
declaration and injunction initially couched in terms to enable him to
continue with a 12 month re-skilling programme (“the programme”) that
commenced on 17 August 2009 at St Vincent’s Hospital, Dublin but which it is
alleged the defendant unilaterally and unlawfully terminated on 5 March
2010, 6 months earlier than expected. It emerged during the hearing that the
programme will expire in any event on 30 June 2010 and hence it is very
unlikely that St Vincent’s Hospital will take the plaintiff on again in any
event. In light of that, Mr Green, who appeared on behalf of the plaintiff,
sought permission to amend his application in the following manner:
(a) Paragraph 1 remained as originally drafted save that he wished to alter
the claim for a declaration to one of an injunction that the defendant should
comply with the terms of the Maintaining High Professional Standards
Framework and in particular should provide the plaintiff with appropriate
support and re-skilling as soon as practicable.
(b) He no longer relied on paragraph 2 which had sought a declaration
that the defendant should comply with the terms of the re-skilling agreement
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dated July 2009 and, in particular, should not terminate the same unilaterally
without the agreement of the programme supervisor.
(c) Paragraph 3 was to be now couched in terms that the plaintiff sought
an injunction that the defendant “should use its best endeavours” to reinstate
“a re-skilling programme” as soon as practicable, to reinstate the funding for
a re-skilling programme and that it be restrained from terminating a re-
skilling programme without good cause. In terms therefore Mr Green sought
to amend the application so as to delete references to the actual re-skilling
programme at St Vincent’s Hospital since it was no longer available in any
event and to substitute an obligation on the defendant to use its best
endeavours to obtain an alternative re-skilling programme as soon as
practicable.
Background
[2] The plaintiff has been employed by the defendant Trust and its
predecessor as a Consultant General Surgeon since February 2003. By letter
dated 26 February 2003 the defendant had agreed to appoint the plaintiff as a
consultant surgeon subject to the “Terms and Conditions of Service of
Hospital Medical and Dental Staff “as amended from time to time, such
appointment to take effect from 1 February 2003. Those terms included a
disciplinary procedure governing the plaintiff’s contract.
[3] It is the plaintiff’s case that in December 2004 the defendant restricted the
plaintiff’s ability to perform his clinical duties on the basis of allegations
regarding the plaintiff’s performance and that from December 2004 for all
intents and purposes he was suspended by the defendant on full pay pending
the outcome of that investigation. The restrictions imposed prevented him
from seeing patients, from any clinical practice including care of patients in
the wards, out-patient clinics or emergencies and from performing any
surgical procedures. Following the coming into force of the Maintaining High
Professional Standards Framework on 1 December 2005 it was further an
express and/or implied term of the plaintiff’s contract of employment that the
defendant had an obligation –
• To seek to address clinical performance issues through remedial action
including retraining rather than solely through disciplinary action
• To ascertain quickly what has happened and establish the facts and to
put in place action to address any underlying problem.
• Only to use exclusion from work in the most exceptional cases.
• That its key officers and its Board would have responsibilities for
ensuring that the process was carried out quickly and fairly so that the
total period of exclusion was not prolonged.
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Francesco Don Fitzpatrick and Lucia Maria Fitzpatrick and Ligoniel Development Limited
...relief which should be granted. I concur with the views expressed by Gillen J in Khan v Western Health and Social Services Trust [2010] NIQB 92 and by Lord Hoffman in National Commercial Bank Jamaica v Olint [2009] 1 WLR 149 that arguments over whether injunctions are prohibitory or mandato......