Appointment of Consultants

Today, we received a Judgment from the EAT that will be relevant for many NHS employers. It has decided that appointments of locum Consultants that exceed the maximum duration (no more than one year) are ultra vires - ie made outside lawful powers.

The NHS (Appointment of Consultants) Regulations 1996 ("the Regulations") set out the basis for the appointment of Consultants. These, in simple terms, require the establishment of an Advisory Appointments Committee (AAC) before a Consultant post is filled. The AAC's function is to determine that the appointed person is fit for the responsibilities of a Consultant; this includes specialist registration. An exemption from this requirement (amongst others) is that locum Consultants may be appointed to a post for no more than 12 months without an AAC. (Appropriate College approval is required for the renewal or continuation of the appointment after the first 6 months, however, an appointment cannot exceed 12 months in total).

One of the common practical effects is that specialist registration is not required for appointment as a locum Consultant. The question ariose as to what is the effect of a locum Consultant appointment which exceeds the limits set by the Regulations?

It is, perhaps, surprising that there has, until now, been no direct precedent in this area. The EAT handed down Judgment today in Shrewsbury & Telford Hospital NHS Trust v Dr Lairikyengbam. The Trust appealed an ET decision that the dismissal of a locum and the refusal to pay redundancy, because the appointment had exceeded 12 months, was unfair. That decision was overturned today. The facts are involved and we will comment on them in detail in due course. Hill Dickinson represented the Trust.

The key aspects of general application are:

1) Appointments in breach of the Regulations (in this case for more than 12 months) are ultra vires.

2) If an appointment of a locum (and presumably, by extension, a substantive Consultant) is made outside of the Regulations, despite that the appointment is ultra vires, the Courts will imply an alternative, but unspecified, relationship of employment. On this basis, proceedings alleging unfair dismissal can be taken. [It will be open to an employer to defend such proceedings under S 98 (2) (d) of the Employment Rights Act 1996 on the basis that the primary relationship could not continue because it was contrary to the Regulations, provided that this was the reason for dismissal].

3) No redundancy situation arose where a substantive appointment was made resulting in dismissal of the locum.

The findings of the ET against the Trust were largely dismissed or substituted as perverse, although the question of whether the employee was unfairly dismissed, given the alternative implied employment relationship, has been remitted to a new ET. The implication of an alternative employment relationship is relatively novel and may be the subject of a further appeal. The Trust contends that the dismissal decision is fair in any event, as it was made because the employment had exceeded the duration permitted by the Regulations and because of the appointment of a new substantive Consultant.

Courts and Tribunals are inherently reluctant to leave claimants without effective remedies and care should be taken in terminating locum contracts (not least because of the cost of contractual redundancy pay).

There is a specific locum code for NHS employers. The intention is that only suitable candidates are appointed following appropriate processes and that any difficulties are addressed and recorded. Locums are vital to the NHS and many doctors work in this capacity.

The Regulations only apply to Consultant positions.

This Judgment took into account the recent decision in Rose Gibb v Maidstone and Tunbridge Wells NHS Trust (which we also commented upon) on ultra vires contracts. This held that NHS employers, as public bodies, have specific powers: if they are exceeded, contracts made may not be enforced.

It is of note that Foundation Trusts do not have the same limitations on their powers and it may be that (whether intended or not) Consultants can be appointed in the NHS without the need for an AAC or even without specialist registration. What is clear is that FTs will need to exercise care in prolonging locum appointments and there are also clinical governance aspects to be considered.