News

Can the Court intervene to restrain an employer from requiring an employee to face a charge of potential gross misconduct at a disciplinary hearing if the conduct complained of is not sufficiently serious to support such a finding?

Yes it can, following the Supreme Court’s judgment in Dr Chhabra v West London Mental Health NHS Trust, upholding the grant of an injunction restraining the Trust from proceeding to a disciplinary hearing. The Supreme Court held that breaches of patient confidentiality by Dr Chhabra, whilst they could be viewed by the Trust as constituting serious misconduct, could not on the facts give rise to a valid charge of gross misconduct because there was no material to support the view that they were wilful or deliberate. To proceed to a hearing on this basis would amount to a breach of contract.

The Supreme Court also recognised an implied contractual right to a fair disciplinary process. Amongst other procedural irregularities, the Trust was found to have breached this right by allowing the case investigator’s conclusions to be amended by an HR adviser. The involvement of that adviser was also in breach of an agreement by the Trust that he would have no further involvement in the investigation. The Court held that the Trust could not proceed to a disciplinary hearing in reliance on the modified conclusions of the investigation report because the HR adviser had made extensive amendments which strengthened the criticisms of the doctor. The Trust was restrained from proceeding to a disciplinary hearing unless and until the complaints had been investigated afresh.

This important decision clarifies the High Court’s power to grant pre-emptive remedies in employment based disciplinary proceedings, as an alternative to unfair dismissal claims pursued after the event which offer limited financial redress. The Supreme Court also clarifies the role of the case investigator and the extent of the case manager’s discretion in dealing with misconduct matters.

Of importance to those advising doctors and NHS Trusts on the Maintaining High Professional Standards in the Modern NHS (“MHPS”) disciplinary framework is the Supreme Court’s finding that the framework generally requires that the case manager should base disciplinary charges on a prima facie case of misconduct uncovered by the investigation, although a case manager may make his own assessment of the evidence that the case investigator records in the investigation report and is not required to formulate the complaint for consideration by a disciplinary panel precisely in the terms of the investigator’s report.

Further, in cases being dealt with under MHPS based procedures involving both misconduct and lack of capability, the Supreme Court took a broader approach than that adopted in Hussain v Surrey and Sussex Healthcare NHS Trust, holding that a Trust has a discretion in appropriate circumstances to proceed to a conduct hearing separately rather than having to combine consideration of misconduct with capability under the capability procedure. Greater flexibility is thus provided to Trusts in responding to conduct issues discretely without having to await the outcome of a National Clinical Assessment Service assessment.

Dr Chhabra was represented by Mark Sutton QC and Betsan Criddle, instructed by Radcliffes LeBrasseur. The Trust was represented by Jane McNeill QC and Louise Chudleigh, instructed by Capsticks Solicitors.