Ardron v Sussex Partnership NHS Foundation Trust

An employer’s contractual disciplinary procedure must be applied consistently with the general law of gross misconduct. Conduct listed as negligence, breach of trust or wilful breach of professional codes does not automatically constitute gross misconduct. The conduct must be sufficiently serious to justify summary dismissal.

An injunction may restrain disciplinary proceedings where there is a serious issue that the employer has wrongly categorised conduct as gross misconduct or has referred matters to a disciplinary panel which were not investigated. The court should avoid micro-managing disciplinary proceedings, but an unlawful process may justify intervention. The usual interim injunction principles apply, including adequacy of damages and the balance of convenience.

The claimant, a consultant psychiatrist employed by the defendant NHS trust, sought an interim injunction under CPR 25.1(1) restraining a disciplinary hearing concerning alleged gross misconduct arising from the care of a prisoner who later died by suicide.

The claimant argued that the management case improperly treated alleged errors, inadequate records and careless or inappropriate conduct as gross misconduct, and advanced complaints which had not been investigated. The trust contended that there was ample evidence of a case to answer and that the disciplinary process should proceed. The central issues were whether there was a serious issue to be tried, whether damages were adequate, and where the balance of convenience lay.

1. Serious issue to be tried. The claimant established a realistic prospect of showing that the trust had misdirected itself by applying the definitions in its Disciplinary Policy without the stricter common-law requirement that gross misconduct involve sufficiently serious wrongdoing to justify summary dismissal.
2. The contractual examples of negligence, breach of trust and confidence, and wilful breaches of professional codes were not self-defining. A negligent act or deliberate breach of a professional code might fall short of gross misconduct. The relevant conduct had to demonstrate serious wrongdoing, such as deliberate and wilful flouting of contractual obligations or conduct seriously undermining the employment relationship.
3. There was also a serious issue whether the management case relied on matters that had not been considered by the case investigator or supported by evidence gathered in the investigation. The distinction between a lack of documentation showing that reviews occurred and a finding that no reviews occurred was material. The principle stated by Lord Hodge in Chhabra v West London Mental Health NHS Trust [2014] ICR 194 supported that conclusion.
4. Interim relief. Damages would not adequately remedy the prejudice caused by an unlawful disciplinary process, including damage to the claimant’s employment and reputation. Nor would damages adequately compensate the trust for the consequences of delay.
5. The balance of convenience favoured restraint of the disciplinary proceedings. The trust could await an expedited trial and had not shown any urgency requiring the hearing to proceed within weeks. The injunction was therefore granted pending an expedited trial, subject to the claimant’s usual cross-undertaking in damages.