KB-2025-BHM-000174 - [2025] EWHC 2263 (KB)

This case concerns overlapping proceedings in the Employment Tribunal, County Court and High Court, raising interesting questions about the ‘exclusion area’ for Common Law claims about employee disciplinary proceedings, Issue Estoppel and Abuse of Process. It is the application by the Claimant, who represents himself, for an interim injunction restraining the Defendant, his employer, from pursuing disciplinary proceedings against him. The Defendant not only resists that but cross-applies to strike out the Claimant’s claim.

The Claimant is employed as a Consultant in the Ophthalmology Department of the Defendant Trust, based at Queen’s Hospital in Burton-upon-Trent, who started employment on 1^st April 2014. Whilst I have not been shown a copy of his contract of employment, I understand it includes an express term requiring the parties to co-operate with each other and maintain mutual trust and confidence and another express term stating:

“Wherever possible, any issues relating to conduct, confidence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of our Code of Conduct, or that your professional competence has been called into question, the matter will be resolved through disciplinary or capability procedures, which will be consistent with the maintaining of high professional standards in the modern NHS framework [‘MHPS’] and subject to the appeal arrangements set out in those procedures.”

I shall proceed on the basis, consistent with other cases involving Consultants and other doctors, e.g. West London Mental Health Trust v Chhabra [2014] IRLR 227 (SC), that the MHPS policy is also incorporated into the Claimant’s contract of employment - certainly, for the purposes of an interlocutory application such as this, it is arguably incorporated. The question is whether there is an arguable breach of contract justifying an injunction as the Claimant says, or whether the claim should be struck out under CPR 3.4(2) as the Defendant says: either lack of jurisdiction, or as an abuse of process duplicating a County Court claim.