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nhsIs it possible for the Court to intervene to prevent an employer from demanding an employee face a charge of potential gross misconduct at a disciplinary hearing if the conduct complained of is not sufficiently serious?

Yes it is, following the Supreme Court’s judgment in Chhabra v West London Mental Health NHS Trust, which upheld the grant of an injunction restraining the Trust from proceeding to a disciplinary hearing for gross misconduct. The Court held, amongst other things, that the breaches of patient confidentiality by Dr Chhabra did not, when taken at their highest, support a charge of gross misconduct because there was no material evidence to support the view that they were willful in the sense of being deliberate breaches of confidence.

Background

Dr Chhabra was employed as a consultant forensic psychologist by the Trust, and was alleged to have breached patient confidentiality on a number of different occasions. It was specifically alleged that she openly read patient notes, dictated letters to her secretary and discussed patients with a colleague on train journeys. A complaint was received by the Trust and it instigated its disciplinary process.

A case investigator was appointed who investigated the allegations and produced a report of her findings. Dr Chhabra was then notified that the allegations of misconduct had amounted to gross misconduct and as such, would be referred to a disciplinary panel. It subsequently came to light that the Trust’s Associate Human Resources Director had suggested amendments to the investigation report, some of which were accepted by the case investigator, to amend the investigation findings so as to strengthen the criticism of Dr Chhabra’s conduct. This was notwithstanding the fact that the Trust had undertaken that the HR Director would take no part in the investigation.

At that time there were also on-going capability concerns with Dr Chhabra, which were under separate review and which were referred to the National Clinical Assessment Service.

Dr Chhabra argued that her conduct did not amount to gross misconduct and accordingly the matter should not have been escalated to a disciplinary panel but instead should have been dealt with under the Trust’s Fair Blame policy.

The High Court

Dr Chhabra applied to the High Court for declaratory and injunctive relief to prevent the Trust from investigating the confidentiality concerns as matters of gross misconduct under the Trust’s disciplinary policy. The Court granted the declaration and injunctive relief sought and held that the Trust had erred and breached its contract with Dr Chhabra in treating the matters as gross misconduct for which she could be dismissed. Judge McMullen QC, sitting as a judge of the High Court, expressed the view that, as Dr Chhabra had admitted her mistakes, the case cried out to be dealt with under the Trust’s Fair Blame policy.

The Court of Appeal

The Trust appealed against this decision and the Court of Appeal found that the Trust was entitled to regard the breach of confidentiality as a potentially serious offence and as a result was justified in deciding to convene the disciplinary hearing.

The Court of Appeal did not consider that the Trust had acted in breach of contract and quashed the declaration and the injunction against the Trust. Dr Chhabra subsequently appealed against this decision.

The Supreme Court

On 18 December 2013 the Supreme Court unanimously allowed Dr Chhabra’s appeal and granted her injunction preventing the Trust from proceeding with the hearing before the disciplinary panel. The Court ordered the Trust not to pursue the confidentiality concerns without first re-investigating the allegations in accordance with its disciplinary policy.

The Court considered that there had been a number of irregularities in the proceedings against Dr Chhabra which cumulatively rendered the convening of the disciplinary panel unlawful as a material breach of her contract of employment.  Four concerns with the Trust’s approach were then set out, the most significant of which were as follows:

  1. the findings of the case investigator were not capable, when taken at their highest, of meeting a charge of gross misconduct, which was defined in the Trust policy as conduct serious enough “as to potentially make any further relationship and trust between the Trust and the employee impossible”. The Court held that this language described conduct that could involve a repudiatory breach of contract.  However, there was no evidence that Dr Chhabra’s breaches of confidentiality were wilful in the sense that they were deliberate breaches of that duty; and
  2. the Trust breached the obligation of good faith in its contract with Dr Chhabra when the HR Director continued to take part in the investigatory process, in breach of the undertaking given by the Trust.

The Court concluded that the cumulative effect of the procedural irregularities was that it would be unlawful for the Trust to proceed with the disciplinary procedure.

Comment

This decision provides some guidance as to when the courts might intervene to grant pre-emptive remedies in employment related disciplinary hearings.

The Supreme Court remarked that ‘as a general rule’, it is not appropriate for the courts to intervene to resolve minor irregularities in the course of disciplinary proceedings between an employer and an employee, as this would result in unnecessary delay and expense. In this instance however, the procedural irregularities were so serious as to warrant the intervention. The Court also noted that any common law damages which Dr Chhabra might have obtained if she were to succeed in a claim based on the irregularities after her employment had been terminated might be very limited.