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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D'Sa v University Hospital Coventry & Warwickshire NHS Trust [2001] EWCA Civ 983 (18 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/983.html Cite as: [2001] Lloyds Rep Med 442, [2001] EWCA Civ 983, (2001) 62 BMLR 39, [2001] IRLR 691, [2001] Lloyd's Rep Med 442

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Blofeld)

		The Royal Courts of Justice The Strand London WC2A
		Monday 18 June 2001

Monday 18 June 2001

1. LORD JUSTICE MAY: The claimant is a consultant surgeon of considerable experience. The defendants are a hospital trust by whom the claimant is employed. In 1999 he was suspended on disciplinary grounds. Eventually there were disciplinary proceedings under the defendants' disciplinary procedure, which was part of the claimant's contract of employment.
2. The claimant was charged with two allegations of serious professional misconduct. An inquiry panel under the disciplinary proceedings, chaired by a Queen's Counsel, held a hearing and determined, to put it shortly, that one of the two charges had in part been established and that to that extent the claimant was guilty of serious professional misconduct. That charge related to oppression of a junior doctor. The panel made a strong recommendation, however, that the claimant should not be dismissed. They said this in the second part of their report, paragraph 2.5.4:

"We have no doubt at all that dismissal, having regard to the nature and circumstances of the misconduct we have found and to Mr Barros D'Sa's long and hitherto unblemished service, would be wholly unjustified and could not be regarded as an appropriate disciplinary measure in this case."

3. They further said said, at paragraph 2.5.6:

"Taking all the relevant facts into account, our conclusion is that the appropriate disciplinary action is a first written warning; and we so recommend."

4. The defendants then moved towards a disciplinary hearing in consequence of the inquiry panel's finding. It was only with difficulty that the claimant's solicitors extracted disclosure of the second part of the panel's report, which contained their recommendations and to which I have just referred. In addition, the defendants produced a document for use at the disciplinary hearing called a management case, which, under what I regard as the wholly misleading heading of "Mitigation", sought to rely on material, essentially in aggravation, which had not been the subject of any positive finding by the inquiry panel.
5. The claimant took proceedings in court seeking an injunction to stop this. Blofeld J granted an injunction in the following terms:

"At the disciplinary hearing which is to commence on a date to be fixed by mutual agreement in respect of the finding of serious professional misconduct against the Claimant contained in the Inquiry Panel's reports dated the 6th and 25th October 2000 the Defendant must not rely on:

(a) any allegations relating to the conduct of the Claimant other than those relating to the offence found proved by the Inquiry Panel and the surrounding circumstances of that offence

(b) the contents of the Claimant's letter to Mr James Cunningham MP dated 29th July 2000 referred to in paragraph 26 of the Defendant's Statement of Case dated November 2000."

6. Blofeld J was persuaded that the part of the management case under the heading "Mitigation" went outside the terms and purpose of the disciplinary procedure, and that it was contrary to natural justice for the claimant to face at the disciplinary hearing material not the subject of any finding by the inquiry panel. This is the defendant Trust's appeal against that order and judgment. Potter LJ gave permission to appeal on 10 April 2001.
7. The facts of this unhappy affair were admirably set out in Blofeld J's judgment and I propose to quote some of them (page 254 of the bundle, page 2 of the transcribed judgment):

"The Claimant is a long-serving consultant general surgeon with high standards of skill, patient care personal and professional integrity. He is 62 years old.

Since November 1997 he has been working as a part-time consultant general surgeon. Originally, this part-time contract was for one year. He was then offered a further four months. On 11th January 1999, however, he was offered and accepted a new contract for five sessions for an unspecified period commencing 31st March 1999.

He has worked predominantly, of recent years, at the Walsgrave Hospital. His new contract is with Walsgrave Hospital's NHS Trust, the Respondent to this action. He was suspended by them from duty on full pay on 29th October 1999 and remains so suspended.

At the time of his suspension the Trust alleged that he had intimidated and oppressed three junior doctors. Those proceedings went no further for a certain amount of time, so in January 2000 the Claimant started proceedings in the High Court seeking orders against the Trust that it should either substantiate the allegations of misconduct alleged against him or withdraw them.

In February 2000 somewhat surprisingly the Trust's solicitors informed him that the allegations in respect of two of the junior doctors were not to be pursued. The third one was to be pursued. Another allegation was also brought against him on a day that I have not been told about, but somewhere either late in 1999 or early in 2000.

An Inquiry Panel appointed under rule 5.1 of the Respondent's Medical and Dental Staff Disciplinary Procedure was appointed to investigate and report on the two allegations of serious professional misconduct brought again the Claimant. I set them out:

'1. That he failed at a meeting on 23 July 1999 to divulge the true facts surrounding a second operation on patient number LC No B35201.

'2. He intimidated and oppressed in September 1999 a junior doctor Mr Abdul-Mageed in relation to matters arising from patient care.'

The Inquiry Panel hearing took place on 22nd to 26th May 2000 inclusive. They produced the first part of their report on 6th October 2000. That report dismissed the first allegation or charge, as I shall call it. The Inquiry Panel found in relation to the second charge:

'Our terms of reference require us to inquire as to whether Mr Abdul-Mageed as a junior doctor was subjected by Mr Barros D'Sa to intimidation or oppression in relation to matters arising from patient care. Our conclusion was that he was not intimidated but that the conduct of Mr Barros D'Sa towards Mr Abdul-Mageed clearly amounted to oppression. He was unfairly and unjustifiably put into a difficult, distressing and embarrassing position when a conflict was raging among the general surgeons and in which he should not have been involved. Whether Mr Barros D'Sa's conduct was in relation to matters arising from patient care is difficult to say.'

The Panel added shortly after that paragraph:

'In our view, the Claimant acted as he did not because of ill will towards Mr Abdul-Mageed, nor because he desired to oppress him; he may not even have realised he was doing so.'

So much for the first part of the report.

The second part of the Panel's report is dated 25th October 2000. There the Panel concluded that the first allegation did not amount to serious professional misconduct. They then turned to the second charge to find:

'We have not been satisfied that the oppression of Mr Abdul-Mageed was "in relation to matters arising in patient care" as alleged, but we see no reason why that part of the allegation should be regarded as an essential ingredient in this case. We are wholly satisfied that the oppression of Mr Abdul-Mageed by the Claimant in September 1999 constituted serious professional misconduct'. . .

In part 2 of its report the Panel drew attention to the fact that the procedure provides that the Chief Executive, following receipt of part 2 of its report, may decide upon the following disciplinary actions (a) first written warning, (b) final written warning, (c) dismissal. The Panel has a duty under the procedure code to make recommendations. They drew attention to the fact that the suspension of the Claimant had now continued for almost precisely one year and they made the strong comment that it had been a substantial and extended punishment. They continued that they had no doubt at all that dismissal would be wholly unjustified and could not be regarded as an appropriate disciplinary measure in this case. They concluded that the appropriate disciplinary action is a first written warning and they so recommended."

8. Blofeld J's judgment then considers a request for recommendations in relation to questions of trust and confidence between the claimant and the Trust, and he noted that the Inquiry Panel declined give their concluded views about matters of background of this kind.
9. Blofeld J then referred to the terms of the disciplinary procedure, and it is necessary for me to do so. The disciplinary procedure is headed "Medical & Dental Staff Disciplinary Procedure". Its very first paragraph says that:

"The procedures set out are designed to ensure that the fullest and fairest consideration is accorded to medical and dental practitioners in the event of incidents or complaints regarding their conduct or competence",

10. and it is plain, in my judgment, that this whole document is concerned with complaints against the conduct or competence of medical or dental practitioners.
11. There is a variety of possible procedures. Paragraph 2 concerns the making by the Medical Director and the Chairman of the Senior Medical Staff Committee of a preliminary assessment to determine which of the procedures it is appropriate to use. The assessment may determine that there is no substance in the allegation or that the practitioner may be experiencing health problems. But if there is substance in the allegation and health problems do not enter into it, there are three possible levels of action. The first is called the Trust's general Disciplinary Procedure for Personal Misconduct. The second is called a Review Procedure and the third, the one with which this case is concerned, is a preliminary assessment that the matter warrants referral to the Chief Executive for the Serious Professional Misconduct/Incompetence Procedure to be invoked. It is that procedure with which this case is concerned.
12. Paragraph 5 of the document sets out what has to happen. If there is a dispute as to the facts, the Chief Executive has to set up an inquiry panel. The inquiry panel is to consist of a legally qualified chairperson, a practitioner from outside the Trust, and a third member. The inquiry panel in this case was such a panel. The panel has to be provided with precise terms of reference, drawn up by the Chief Executive and agreed by the inquiry panel chairperson. The inquiry panel holds a hearing. Paragraph 5.7 says that:

"The Trust and the practitioner have a right to be represented at the Inquiry Panel hearing by a lawyer. The practitioner also has the right to appear personally at the hearing, to hear all the evidence presented, to cross-examine witnesses and to present his/her own witnesses who in turn may be cross-examined."

13. At the conclusion of the inquiry panel's deliberations, they have to prepare a report in two parts. Part 1 shall set out the inquiry panel's finding and all the relevant facts of the case, but contain no recommendations. That part will be copied to the practitioner against whom the allegations or complaint has been made. Part 2 is to contain the inquiry panel's view as to whether the practitioner is at fault and contain recommendations as to disciplinary action. Part 2 is to be available only to the Chief Executive for his or her further action. The inquiry panel will not be given any disciplinary powers. Paragraph 5.10 provides that:

"On receipt of Part Two of the report, the Chief Executive shall decide what action is appropriate. If the panel finds the practitioner to be at fault the substance of the panel's views and recommendations shall be made available to the practitioner, in good time before any hearing, giving him the opportunity to put in a plea of mitigation."

14. Paragraph 5.11 provides that:

"If disciplinary action is decided upon, the Chief Executive will arrange a disciplinary hearing at which, depending upon the circumstances and the Inquiry Panel's recommendations, he/she will:

(a) Issue a First Written Warning, or

(b) Issue a Final Written Warning, or

(c) Dismiss [the practitioner]".

15. Pausing and looking forward, it is Mr Dean's submission on behalf of the defendant Trust that the words "depending upon the circumstances" in paragraph 5.11 indicate that the Chief Executive is entitled to take into account at or after a disciplinary hearing matters other than mitigation, and matters which were not the subject of any finding by the Inquiry Panel. He refers in support of that (if I may say so) slender argument to paragraph 6.7. Paragraph 6.7 is part of the appeals procedure (for after the result of a disciplinary hearing, the procedure entitles the practitioner to appeal) and it says:

"The Trust Chairman [who is the Chairman of the appeal body] shall decide on the basis of the Appeal Panel's recommendations what action is required and will inform the practitioner accordingly of both the recommendation and the decision."

16. It is on the contrast between the words "on the basis of the. . . Panel's recommendations" in paragraph 6.7 and the added words "depending upon the circumstances" in paragraph 5.11 that Mr Dean's submission upon the actual meaning of the words depends.
17. The preliminaries to the disciplinary hearing took an unfortunate course because of two things. Firstly, there was correspondence between the defendant Trust (and eventually, I think, their solicitors) and solicitors representing the claimant. In a letter dated 9 November, in anticipation of a hearing towards the end of the month, details were given of the finding of the Inquiry Panel. What that letter signally failed to do was to inform the claimant of the recommendation as to, effectively, leniency which the Inquiry Panel had made. It was only as a result of pressure from the claimant's solicitors and, indeed, after the original date for the hearing had been put over, that Part Two of the report was provided to the claimant and his advisers.
18. In addition to that, the defendant Trust produced a management document headed "Issues of Mitigation". That was provided to the claimant with a letter from the Trust's solicitors of 13 November 2000. The letter said: "The management case will deal solely with sanction and mitigation". The document sets out some employment history and other matters, including reference to the findings of the Inquiry Panel, and then under the heading "Mitigation" we find this:

"In terms of mitigation over the issue of Mr Barros D'Sa and the oppression of Mr Abdel Mageed, there is nothing within the report to mitigate in favour of Mr Barros D'Sa."

19. That, in my judgment, was a most unfortunate thing to say at the time before Part Two of the Inquiry Panel's report had been provided to the claimant. On the face of it, it is just plainly untrue because, as I have indicated, there was material in Part Two, as yet undisclosed, of the report to mitigate in favour of Mr Barros D'Sa. This part of the management case then proceeded to indicate that the claimant had written a letter to a Member of Parliament in July 2000 in which he had expressed the view that there was a long vendetta against him, and the management document stated that, if he were to return to his post, it was unlikely to be in the overall interests of patient care. "It would appear", the document said, "in light of [his] letter of July 2000. . . that relationships have irretrievably broken down."
20. Returning to Blofeld J's judgment, he described matters to which I have just referred on page 264, page 12 of his judgment, in these terms:

"After the Inquiry Panel disclosed the second part of their report to the Trust's Chief Executive there was an exchange of letters between the Trust and the Claimant's solicitors. On behalf of the Claimant his solicitors pointed out that he had not been given the substance of the Panel's views and their recommendations as required by paragraph 5.5.10 in good time before any hearing. At that time the hearing was fixed to take place on 23rd November 2000.

In a letter from the Trust's solicitors of 13th November 2000 they state that the disciplinary hearing scheduled for that date should be postponed to a later date. Even by that date, neither the substance nor the recommendations to the Inquiry had been adequately disclosed to the Claimant, certainly none of the recommendations had. They should have been. I have heard no satisfactory explanation as to why they were not. I regard that as most unfortunate. It behoves trusts of this nature to be scrupulous in following properly the procedures laid down by them. It was not done so here.

I return to the letter of 13th November 2000. The Trust's solicitors write:

'We would point out that although the hearing is referred to as a Disciplinary Hearing, it is, in fact, a hearing at which Mr Loughton [the Chief Executive] will be considering the appropriate disciplinary sanction in light of the Inquiry Panel's Report, mitigation put forward by the Claimant and the Management Case in respect of sanction and mitigation.'

I can find no reference to the production of a Management Case in respect of sanction and mitigation in paragraph 5 of the policy statement referred to. Nevertheless one was prepared by the Trust and served upon the Claimant. I am in no way saying that they were not entitled to serve such a document, but they must be careful to consider what it contains.

The first three paragraphs are introductory. Paragraphs 4 to 14 deal with the Claimant's employment history. Paragraphs 15 to 24 purport to summarise the findings of the Inquiry. So far I find nothing wrong with that document. I do, however, then come to paragraphs 25 to 31. I must assume that this document was carefully considered before it was sent. Those remaining paragraphs are headed by the word 'Mitigation'. Nothing could be further from the truth. The matters thereafter included are matters of aggravation, not mitigation, and in my view should not have been included at all. They make reference to a letter sent by the Claimant to a Member of Parliament in July 2000. Part of this Management Case states:

'This letter clearly demonstrates a total lack of trust and confidence in Mr Loughton on the part of Mr Barros D'Sa.'

The next paragraph states that:

'If Mr Barros D'Sa were to return to his post it is unlikely to be in the overall interests of patient care.'

The general thrust of those paragraphs is to refer to matters that were never the subject of any allegation of professional misconduct or any other form of misconduct and have not been decided by an Inquiry Panel under paragraph 5 and have not been decided in any other way in accordance with the procedure laid down in policy statement number 3A."

21. Blofeld J then referred to submissions Mr Dean had made to him, and on page 15 he said this:

"I bear in mind that the Panel expressly declined to rule on a large number of matters, specifically relating to the allegation of lack of trust and confidence. I am no in doubt that it would be a breach of natural justice for the Trust, at the disciplinary hearing, to rely on any matters which have not been the subject of a finding by the Inquiry Panel when considering what the appropriate punishment is.

In addition to that finding on natural justice, I make the following finding: the policy statement number 3 contains the complete disciplinary procedure of the Trust. The proposal that the Disciplinary Panel can ignore their own disciplinary procedure and deal with this Claimant without having alleged any further misconduct by him but yet sentencing him, as it effectively is, for other misconduct is wholly misconceived."

22. Then, a little later in the judgment, and finally, Blofeld J says this:

"Having decided that the appropriate course was to deal with these matters by the Inquiry Panel, they are bound by the findings of that panel. If the Panel makes no findings they are not entitled to raise other matters and make their own findings, particularly as Mr Loughton in this case is very closely connected with these allegations.

Consequently, I rule that it would be inappropriate for the Trust to consider that letter at the disciplinary hearing."

23. The written grounds of appeal in this case seek to disturb Blofeld J's finding on the ground that he was wrong to hold that the defendants' intention at the disciplinary hearing to consider whether the necessary relationship of trust and confidence still subsisted between the parties in the light of the finding of the Inquiry Panel, the nature of the respondent's case before the Inquiry Panel and the letter sent by him to a Member of Parliament was or would be a breach of the appellant's Medical and Dental Staff Disciplinary Procedure. It is suggested that the judge was wrong to find that the intention referred to amounted to introducing new allegations against the claimant or to sentencing him for misconduct other than that which was before the inquiry Panel; and that the judge was wrong in holding that that intention was a breach of natural justice. It is also suggested that the judge was wrong to exercise his discretion to grant an injunction in this case.
24. Mr Dean's submission before the court this morning centres on two matters. First of all he submits that the Chief Executive and the defendants in this case were entitled to bring into account at this disciplinary hearing questions regarding the relationship of trust and confidence between themselves and the claimant, which they said it was obvious had broken down. The submission, baldly, as confirmed in answer to a question by my Lord, Lord Justice Simon Brown, is that, although the Panel had recommended a first written warning and had said that dismissal would be wholly unjustified, because there had been a breakdown of confidence and trust (and whoever was responsible for that), the Trust would be justified at this hearing in deciding to dismiss the claimant. That seems to me to be a wholly untenable submission on the facts of the case.
25. However, the second limb of Mr Dean's submission is that paragraph 5.11 of the disciplinary procedure, the terms of which I have read, entitle the Chief Executive to take into account matters other than those which had been found by the Inquiry Panel. He relies, as I say, on the slender words "depending upon the circumstances" in that clause. It seems to me that it is entirely inappropriate to read into those words the really rather fundamental submission that, although this is a disciplinary procedure and although the whole procedure is designed to give those who are charged with serious professional misconduct the opportunity of a fair hearing and a fair determination as to what the facts are in relation to the serious allegations made against them, nevertheless, when it comes to deciding what consequences there shall be (and it does seem to me apparent that it is appropriate to put this in terms of sentence) those who are imposing the consequences can take into account unproven matters which have not been the subject of any finding by the Inquiry Panel. "Depending upon the circumstances", it seems to me, covers the necessary general background matters and true mitigation on behalf of the claimant, and does not extend beyond that.
26. Mr Dean has referred us to three authorities. The first of them is Hill v Parsons [1972] Ch 305, the second Robb v Hammersmith and Fulham LBC [1991] ICR 514 and the third Nothman v Barnet No2 [1980] IRLR 65. I do not find that these cases are of assistance in the present case. Simply by way of example, Mr Dean referred to Hill v Parsons for the proposition that it is or may be a necessary precondition to an injunction against ending an employment that there should be the existence of trust and confidence between the employee and the employer. But that, it seems to me, is quite different from the suggestion that an employee can be dismissed if trust and confidence has broken down under a disciplinary procedure when that has not been determined either as fact or, more importantly, adversely to the employee. As I have said, Mr Dean refers to paragraph 5.11 of the disciplinary procedure but that, in my judgment, is of no assistance to the Trust in this case.
27. The submission in the round, nevertheless, is that the Trust has taken disciplinary proceedings and that the claimant in the course of the Inquiry hearing made allegations about the management of the Trust and of some of his colleagues. The Panel has found that some of these were not substantiated, and the fact that these were part of his conduct of his case before the Inquiry entitles the defendants to take them into account at the disciplinary hearing consequent upon the Panel's finding.
28. In my judgment, Blofeld J reached the correct conclusion in this case for the correct reasons. The disciplinary procedure operated by this hospital Trust, which is part of the contract of employment between them and the claimant, is a code for deciding whether any member of the medical staff has been guilty in some instances of serious professional misconduct and, if it is found by an inquiry panel that he or she has, for imposing sanctions. The Chief Executive, following a disciplinary hearing, decides on the sanction. It is, in my judgment, an intrinsic part of the structure (and indeed only fair) that the matters relevant to the sanction, subject to what may properly be called mitigation, should, in so far as they are adverse to the member of staff concerned, be limited to those which the Panel has found. Otherwise the member of staff would be being sentenced for matters which had not been established against him by the proper contractual procedure.
29. It is plain that the defendants were intending to go beyond this in their management case, and that they were attempting to make a more serious case than the Inquiry Panel had found. That would have been unfair as well as being, in my judgment, contrary to the disciplinary procedure, properly understood. The claimant would, as I have said, have been at danger of been being sentenced for an offence whose facts had not been found proved against him. If there are problems about confidence and trust that have not been found to amount to serious professional misconduct, these are inappropriate for consideration at a disciplinary hearing, following this Panel's inquiry at least. An employer who says that trust and confidence have broken down is not, in my judgment, entitled to dispense with the terms of a contractual inquiry process.
30. For these reasons I would dismiss this appeal.
31. LORD JUSTICE DYSON: I agree. The short point raised by this appeal is what is the true construction of paragraph 5.11 of the Trust's disciplinary procedure and, in particular, what is the scope of the phrase "depending upon the circumstances"? On behalf of the Trust, it is submitted that this phrase means all circumstances that the Trust as an employer may reasonably take into account, having regard to the situation as it exists at the time when it comes to decide what disciplinary action to take. Thus, even if the gravity of the misconduct taken by itself would not reasonably justify dismissal, other circumstances may reasonably lead to a different conclusion.
32. Mr Dean submits that the Trust is not required to consider the findings and recommendations of the Panel in a vacuum: if the relationship of trust and confidence that lies at the heart of a satisfactory employer/employee relationship has gone, then that is a fact which the Trust may take into account as a circumstance when deciding what disciplinary action to take. I cannot accept this interpretation of paragraph 5.11. The context is crucial.
33. Paragraph 5 of the document is entitled "Serious Professional Misconduct/Incompetence Procedure". It is invoked when, following allegations of misconduct, a preliminary assessment has been made which has concluded that "a prima facie case exists which warrants disciplinary action being taken" (paragraph 2.1). It follows that paragraph 5 prescribes the procedure that applies before disciplinary action can be taken for specific serious professional misconduct. Where there is a dispute as to the facts, the procedure requires that an inquiry panel investigates the matter and prepares a report in two parts. Part 2 is to contain recommendations "as to disciplinary action" (paragraph 5.9(b)) and the Chief Executive is required to decide what disciplinary action is appropriate upon its receipt; that is, in the light of Part 2 of the report. There is no indication in the document that the panel is required to have regard to anything other than the gravity of the misconduct and any personal mitigation available to the practitioner in deciding what action to recommend; or that the Chief Executive is entitled to have regard to any wider considerations when deciding what action to take.
34. In my view, that decision will involve taking a view of the seriousness of the misconduct and any personal mitigation that is put forward by the practitioner. How serious is the misconduct? Is this is a first act of misconduct? Has it been proved or admitted that the practitioner had committed similar acts before? How long has he been practising? Depending on the facts of the case, these and no doubt other matters may all be relevant questions to ask; but, in my view, very clear words would be required if matters entirely irrelevant to the gravity of the specific misconduct which has been investigated by the panel and any personal mitigation of the practitioner could be taken into account in deciding what disciplinary action to take.
35. The mere fact that there has been a breakdown of trust and confidence cannot be a relevant circumstance in the context of this document. If it were, it would have the startling effect that a case of serious misconduct which, taken by itself, was thought not to justify any disciplinary action whatsoever, could lead to dismissal, even if responsibility for the breakdown were not that of the practitioner at all; and yet, so far as the outside world was concerned, a practitioner dismissed in such circumstances would have been dismissed for misconduct. It hardly needs to be stated that the effect of a dismissal for misconduct on the career prospects of a practitioner may be catastrophic. In my view, the short answer to the argument advanced on behalf of the Trust is that the procedure document is intended to authorise disciplinary action for professional misconduct or incompetence, and not for a breakdown of trust between employer and employee. For these reasons, as well as those given by May LJ, I would dismiss this appeal.
36. LORD JUSTICE SIMON BROWN: The appellant Trust's argument in the present case involves, as Mr Dean appears to recognise, this proposition: that, in circumstances where an inquiry panel find a practitioner guilty of serious professional misconduct, however low in the scale of seriousness that conduct may be and irrespective of whether, as here, the panel recommend no more than a first written warning as the consequence and make plain that dismissal would be "wholly unjustified", the Trust may nevertheless use the opportunity of those disciplinary proceedings to dismiss the practitioner if there has been a breakdown of trust and confidence between him and the Trust, even if the responsibility for that breakdown rests entirely with the Trust.
37. One has only to articulate that proposition to recognise how unlikely it is to be sound, so manifestly unfair would be its consequences. It gains no support whatever from the three authorities cited to us. Those cases were concerned with the very different questions of whether and when, otherwise than in the context of disciplinary proceedings, employers can properly be enjoined against dismissing their employees, or can properly be required in unfair dismissal proceedings to re-employ them.
38. The appellant's proposition necessarily depends upon construing the word "circumstances" in paragraph 5.11 of the disciplinary procedure as encompassing not merely the circumstances of the disciplinary offence of which the practitioner has been convicted and his mitigation, but, in addition, anything else, whether or not to the practitioner's discredit, which may seem to the Chief Executive to bear upon the desirability or otherwise of continuing to employ him.
39. Like my Lords, I would unhesitatingly reject that construction. Blofeld J's judgment was to my mind plainly correct. The appeal is dismissed.
ORDER: Appeal dismissed with costs. Detailed assessment of both parties' costs (Order not part of approved judgment)