West London Mental Health NHS Trust v Chhabra

An NHS employer must follow disciplinary procedures which have contractual effect. A case manager may assess evidence gathered by the case investigator and formulate charges from the report and its supporting materials. The case manager may not refer an uninvestigated complaint for which the investigator gathered no evidence.

Courts ordinarily avoid intervening in ongoing employment disciplinary proceedings to correct minor irregularities. Intervention may, however, be justified where serious procedural defects cumulatively breach the employment contract or the employee’s implied right to a fair process. Conduct may be pursued as gross misconduct only where the evidence is capable of meeting the employer’s contractual definition of that category.

The Trust employed the appellant as a consultant forensic psychiatrist. Its disciplinary policies, which implemented the national framework for doctors and dentists, were incorporated into her contract so far as apt for incorporation. Following concerns about patient confidentiality and teamwork, a case investigator prepared a report. A human-resources manager participated in revising its draft despite an undertaking that he would take no part in the investigation.

The case manager proposed treating confidentiality allegations as potential gross misconduct. The High Court restrained that course, but the Court of Appeal allowed the Trust’s appeal in [2013] EWCA Civ 11. The central issues were the respective roles of the investigator and case manager, whether the evidence could support gross misconduct, and whether procedural irregularities justified injunctive relief.

1. Appeal allowed. Lord Hodge, with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agreed, held that the cumulative procedural irregularities made continuation of the disciplinary process unlawful as a material breach of the appellant’s employment contract.

2. The case investigator gathers and reports relevant information and determines whether there is a prima facie case. The investigator does not finally determine disputed facts. The case manager may assess the recorded evidence and convene a conduct panel even where the investigator has not resolved factual disputes. Charges need not reproduce the investigator’s wording, but they must be based on the report or its accompanying materials. A complaint which the investigator has not considered and for which no evidence has been gathered cannot be sent to the conduct panel.

3. The reported evidence was capable of supporting a complaint of serious misconduct because patient confidentiality is central to trust between doctors and patients. It was not, even taken at its highest, capable of supporting gross misconduct under the Trust’s contractual definition. That definition contemplated conduct potentially destroying the employment relationship and trust. The evidence disclosed no deliberate breach of confidentiality comparable to deliberate disclosure to the media.

4. The employer also relied on wording introduced after the relevant events; failed to reconsider the gross-misconduct classification after withdrawing an additional complaint; and breached an undertaking excluding a human-resources manager from the investigation. His extensive amendments stiffened the investigator’s criticism and went beyond legitimate assistance with completeness, clarity or presentation. The resulting report was not the investigator’s own product. That involvement breached the agreed procedure, the contractual obligation of good faith and the implied right to a fair process.

5. Courts should not ordinarily intervene to remedy minor irregularities or micro-manage disciplinary proceedings. The defects here, particularly the unsupported gross-misconduct classification and the interference with the investigator’s report, were sufficiently serious. The possible inadequacy of damages following termination also supported relief.

6. The Trust was entitled to treat the allegations as potentially serious misconduct, so it did not have to use its fair-blame procedure. It also had discretion to pursue the discrete conduct allegations separately from capability concerns. The earlier inclusion of an uninvestigated complaint was cured when the Trust withdrew it after further investigation.

7. The Court restrained the Trust from pursuing the identified confidentiality concerns as gross misconduct and from pursuing any confidentiality concern without first restarting and completing an investigation under policy D4A.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and substituted an injunction restraining pursuit of the confidentiality concerns as gross misconduct or without a restarted and completed investigation.
2. Court of Appeal: In [2013] EWCA Civ 11, allowed the Trust’s appeal and set aside the High Court’s order. It held that the case manager could assess the evidence and was entitled to convene a conduct panel.
3. High Court: Judge McMullen QC granted declaratory and injunctive relief. He held that treating the allegations as gross misconduct and referring charges not grounded in the investigator’s report breached the appellant’s contract.