In February 2019, following a two week trial, the Royal Court of Jersey found in favour of Mr Amar Alwitry, a leading consultant ophthalmologist unlawfully dismissed in breach of contract by the States of Jersey Employment Board (“SEB”) – [2019] JRC 014 in the case of States Employment Board v Alwitry [2019] JCA 134. The Royal Court further held that the terms of the consultant contract of employment were such that Mr Alwitry’s claim in damages was not capped by reference to any notice period.
The SEB appealed against that decision, and its appeal was heard and dismissed by an extraordinary sitting of the Jersey Court of Appeal comprising Sir William Bailhache (Bailiff of Jersey), Lord Anderson of Ipswich, KBE QC, and Jonathan Crow QC.
Nick Pointon, together with Jersey Advocate Steven Chiddicks, have successfully represented Mr Amar Alwitry at all stages of this litigation, which has gathered considerable press interest both in Jersey and the UK mainland.
The appeal focused upon three central issues, namely: (1) the test for repudiatory breach of a contract of employment; (2) the proper construction of Schedule 18 of the consultant contract of employment, and the circumstances in which the SEB, as employer, could lawfully terminate it on notice; and (3) whether communications with an employer from a trade union (in this case, the British Medical Association) could lawfully contribute to grounds for dismissal consistently with the Article 10 ECHR right to consult a trade union.
Mr Alwitry succeeded on all three issues, the Court of Appeal finding that “we consider that the SEB has fallen well short of discharging the burden of proving that it had reasonable grounds for terminating Mr Alwitry’s Contract…” Significantly the Court of Appeal rejected the SEB’s position that the language of the contract permitted it to terminate if, in good faith, it gave any of the “reasons” identified in Schedule 18, regardless of whether the reason objectively justified dismissal. The Court of Appeal’s finding therefore recognises the contractual protection against dismissal to which consultant doctors are entitled.
The Court of Appeal’s judgment can be read here.
It is as yet unknown whether the SEB will seek leave to appeal again to the Judicial Committee of the Privy Council. The BMA continues to fund this litigation on behalf of Mr Alwitry and the interests of all doctors.