Northamptonshire Healthcare NHS Foundation Trust v Chawla

Under section 98(4) of the Employment Rights Act 1996, the fairness of a second disciplinary process depends on whether instituting it was fair in the circumstances. The statutory band of reasonable responses does not require an employer to establish exceptional circumstances.

An Employment Tribunal must identify the actual misconduct charge. It errs by assessing a more serious allegation than the employer relied upon. Where dismissal is said to follow disobedience of a management instruction, the Tribunal must determine what instruction was communicated and whether it was reasonable, including any relevant contractual duty of co-operation.

The Tribunal must not substitute its own view for that of the employer, but its decision may be set aside where it asks the wrong legal questions.

The Claimant, a consultant psychiatrist, was summarily dismissed for gross misconduct. The disciplinary findings concerned patient complaints, social-media contact with a vulnerable patient, and private medical work undertaken during his exclusion despite communications from the Trust.

The Employment Tribunal at Huntingdon upheld his unfair-dismissal claim. It held that the complaints had already been addressed, that the Facebook allegation had not been reasonably investigated, and that the Trust had no demonstrated power to prevent private work. The Trust appealed.

The central issue was whether the Tribunal had correctly applied the statutory fairness test to each disciplinary charge and to the dismissal overall.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside and the unfair-dismissal claim was remitted to a differently constituted Tribunal for a fresh hearing.

2. On the first charge, the Tribunal erred by requiring exceptional circumstances before complaints previously answered under the patient-complaints process could be pursued disciplinarily. Section 98(4) of the Employment Rights Act 1996 required the ordinary question whether it was fair to institute the second process. The Tribunal had not addressed whether the Claimant had been assured that there would be no further action, whether delay reasonably conveyed that conclusion, or the evidence that the internal HR process had been left open.

3. On the Facebook element of the second charge, the Tribunal conflated making contact with a patient with initiating contact. The charge was contact via Facebook and inappropriate social-media use. The Claimant admitted contact. The employer therefore plainly had a reasonable belief on reasonable grounds. The Tribunal’s investigation criticisms concerned initiation and patient credibility, neither of which was material to the charge correctly understood.

4. The third charge concerned disobedience of a reasonable management instruction. The Tribunal had to decide what instruction was given and whether it was reasonable. It gave no adequate reason for treating communications made after consultation with the MHPS case manager as merely opinions, or for assuming that only the case manager could communicate an instruction. It also failed to engage with the evidence of the parties’ apparent understanding, and the Claimant’s general contractual duty to co-operate, when considering whether the instruction was reasonable.

5. Although some process criticisms might bear on overall fairness, they could not safely sustain the result after the errors on all three charges. Substitution was inappropriate because outstanding fairness issues meant that there was not necessarily only one answer. A fresh Tribunal must make its own findings and conclusions.

• Employment Appeal Tribunal: appeal allowed. The Employment Tribunal judgment was set aside and the claim remitted for a fresh hearing.
• Employment Tribunal at Huntingdon: Employment Judge Moore upheld the Claimant’s unfair-dismissal claim in a judgment sent to the parties on 11 December 2014.