West London Mental Health NHS Trust v Chhabra

An employer’s contractual disciplinary procedure may be restrained where the proposed process would breach an express contractual term. Applicable policies must be read together, with the investigator supplying an unbiased account of the evidence, the case manager deciding whether the seriousness threshold for referral is crossed, and the disciplinary panel resolving disputed facts. A charge may be described as gross or wilful where the investigation material provides an evidential basis. A fair-blame or capability route is not compulsory where the policies reserve separate referral for potentially serious misconduct. Serious breaches of patient confidentiality in a public place may justify a disciplinary hearing despite related capability issues, mitigation or procedural lapses.

Dr Chhabra, a consultant forensic psychiatrist employed by West London Mental Health NHS Trust, admitted two breaches of patient confidentiality while travelling on public transport and disputed a third allegation. The Trust’s case manager decided that the conduct should be referred to a disciplinary panel as potential gross misconduct, while separate capability concerns were to be considered through the National Clinical Assessment Service.

The Queen’s Bench Division granted a declaration and injunction restraining the disciplinary process, holding that the charges were not sufficiently grounded in the investigation report and should have been dealt with through the capability or Fair Blame procedures. The Trust appealed. The central issue was whether the case manager’s decision to convene a disciplinary panel was contrary to the contractual disciplinary policies or otherwise unlawful.

1. The appeal was allowed and the declaration and injunction were quashed. The Court of Appeal unanimously held that intervention is available where an employer’s disciplinary process would breach an express contractual term. The court itself determines whether the procedure is lawful and may grant appropriate relief. This was consistent with Edwards v Chesterfield Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence [2012] 2 AC 22 and Skidmore v Dartford & Gravesham NHS Trust [2003] ICR 721. The court disagreed with any contrary view attributed to Hussain v Surrey & Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB), paragraph 110.
2. D4 and D4A had contractual force and had to be read together. The investigator’s function was to investigate impartially, collect sufficient evidence and report the available evidence and findings. The case manager, not the investigator, decided whether there was a misconduct case for a conduct panel. The panel was the proper forum for resolving material factual disputes and was not confined to findings already made by the investigator.
3. The case manager had to assess whether the alleged misconduct was sufficiently serious to require a panel hearing. The terms gross and wilful could be used where the investigator’s material justified them. The Court of Appeal agreed with the relevant approach in Hussain and Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] All ER (D) 278.
4. The Fair Blame procedure was reserved for matters that were not potentially serious or gross offences. D4A recognised that conduct could be pursued separately from capability. Serious confidentiality breaches in a public place by a consultant working at Broadmoor crossed the referral threshold. Mitigation, other capability concerns and the procedural lapses involving Mr Wishart and Dr Taylor’s email did not materially invalidate the decision.

• Court of Appeal (Civil Division): Appeal allowed and the declaration and injunction quashed, [2013] EWCA Civ 11.
• Queen’s Bench Division: His Honour Judge McMullen QC granted a declaration and injunction restraining the proposed disciplinary process, [2012] EWHC 1735 (QB).