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Before his resignation in 1997 Dr Simon Fishel was a world-renowned clinical IVF embryologist and scientific director of the University of Nottingham's infertility unit, where he was responsible for the unit's embryologists.
While employed by the university, Fishel carried out paid treatment work abroad, sometimes using embryologists from his unit. Each of their employment contracts required the university's consent to do outside paid work.
After Fishel handed in his notice, the university brought a claim against him for profits or damages for breach of contract and fiduciary duty.
In the case of University of Nottingham v Dr Simon Fishel Mr Justice Elias found that Fishel was in breach of contract in failing to obtain consent for his outside work, but awarded the university no damages. This was because these breaches had not caused the university any loss, since the work carried out abroad made a significant contribution to the research and development at, and did not prejudice the functioning of, the unit.
Concerning the fiduciary duty claim, the judge pointed out that whereas it is the very essence of the office of trustee, company director or liquidator that they exercise their powers for the benefit of another, the essence of the employment relationship is not typically fiduciary.
The judge decided that Fishel was under no specific duty to secure the work abroad for the university, and could not have been contractually obliged to do the work abroad that he did.
However, Justice Elias did hold Fishel liable to account for monies he earned through the use of embryologists for whom he was responsible. By accepting work for them from which he was directly benefiting, he put himself in a potential conflict between his specific duty to the university and his own financial interest.
The judge held that the university was entitled to the sums which Fishel received in respect of the patients treated by the other embryologists at the university, minus the payments Fishel made to these embryologists, any tax he paid on these profits, and an allowance as reward for services rendered by Fishel himself.