Chhabra v West London Mental Health NHS

An employer must apply contractual disciplinary and capability procedures according to their substance, not merely their labels. A confidentiality breach may constitute conduct, but gross misconduct requires material capable of showing a deliberate flouting of essential contractual obligations. Where conduct is connected, or potentially connected, with performance or capability, the contractual procedure ordinarily requires referral to NCAS and consideration under the combined capability process. A disciplinary charge must reflect the investigator’s actual findings. Where the charge cannot properly be categorised as gross misconduct, the contractual fair-blame procedure may be available as of right. The court may restrain a threatened disciplinary process by injunction where it would breach the employment contract.

Dr Chhabra, a consultant forensic psychiatrist employed by West London Mental Health NHS Trust, admitted reading patient notes and dictating reports in public places. The Trust’s investigator upheld those confidentiality complaints but also identified capability concerns relating to communication and team working.

The Trust proposed to deal with the confidentiality matters under its disciplinary procedure as potential gross misconduct, while addressing capability matters separately through NCAS. Dr Chhabra sought an injunction and declarations, alleging that the decision breached contractual procedures and the implied term of trust and confidence.

The central issues were whether the allegations were properly classified as gross misconduct, whether conduct and capability issues had to be combined, and whether the proposed disciplinary process could be restrained.

1. Claim upheld. The court granted specified injunctions and declarations restraining the proposed disciplinary process. The declaration concerning an alleged intention to dismiss was refused.
2. The contractual policies were incorporated into the employment contract. The court had to determine whether the Trust’s classification complied with those contractual provisions. The Trust was not the final arbiter of classification merely because the policy gave it responsibility for deciding the appropriate route.
3. The admitted confidentiality breaches could properly be described as conduct. However, the issue was whether they amounted to gross misconduct. Gross misconduct required conduct sufficiently serious to show a fundamental breach of the employment relationship, including the element of wilfulness identified in Wilson v Racher [1974] ICR 428. The investigator’s findings did not support the enlarged charges advanced by the Trust, including allegations that had not been upheld.
4. The Trust was required to reassess the allegations in the light of the investigator’s report and the claimant’s explanations. The available material did not justify categorising the remaining matters as gross misconduct or proceeding under the highest disciplinary category.
5. The policies required a purposive approach. Where there was, or possibly was, a connection between conduct and performance, paragraph 4.5 required the matters to be dealt with together under the capability procedure, ordinarily after NCAS involvement. The confidentiality breaches occurred while the claimant was performing professional duties for the Trust and had an identifiable background of work pressure and other capability-related matters.
6. The fair-blame procedure was contractually available because the matters could not properly be classified as gross misconduct and involved admitted errors, remorse and remedial training. The procedural defects concerning privileged documents and investigation handling did not establish a breach of the implied term of trust and confidence.
7. An injunction was an appropriate remedy for the threatened breach of the contractual procedures. Contractual injunctive and declaratory relief could operate alongside statutory unfair-dismissal remedies, as explained in Edwards v Chesterfield Royal Hospital Foundation NHS Trust and Botham v The Ministry of Defence [2012] 2 WLR 55.