Al-Obaidi v Frimley Health NHS Foundation Trust

An employer’s decision under contractual medical disciplinary procedures to refer allegations to a disciplinary hearing is ordinarily a contractual discretion. The court does not decide the merits afresh. It reviews whether the discretion was exercised in good faith and rationally in the public law sense. A disciplinary hearing may be restrained where the evidence, taken at its highest, cannot support a case of misconduct, or where serious procedural irregularities breach the employment contract. Minor irregularities, delay, or an additional procedural safeguard will not ordinarily suffice. The existence of a case to answer is a threshold issue; it does not require the employer or court to determine whether the allegations are true.

The claimant, a consultant cardiologist, sought a permanent injunction preventing his employer from convening a disciplinary hearing concerning two allegations. He was accused of deliberately giving misleading accounts of a patient’s treatment, including in a written statement and in reporting what a consultant colleague had told him about a coronary perforation.

The claimant argued that the allegations could not amount to gross misconduct, that the investigation was contractually defective, that there had been significant delay, and that the employer had acted in bad faith. The employer maintained that there was a case to answer and that the procedural matters did not justify injunctive relief.

1. Contractual decision-making. The case manager’s decision whether there is a case to answer involves factual, mixed fact-and-law, and discretionary judgments. Applying the approach in Braganza v BP Shipping Limited [2015] UKSC 17, the discretion is subject to an implied term that it be exercised in good faith and rationally in the public law sense. The court will intervene only for breach of that term. Alternatively, the court considered whether the evidence, taken at its highest, was capable of supporting gross misconduct.
2. Procedural irregularities. Following West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, an injunction may be justified by a sufficiently serious procedural irregularity which breaches an express or implied contractual term. The irregularity need not be repudiatory, but minor irregularities are insufficient.
3. Charge 8a. The claimant’s statement substantially understated the criticisms of the colleague’s treatment and omitted material matters arising from the contemporary records and expert evidence. The employer was reasonably entitled to conclude that the allegation disclosed a case to answer, and the evidence, taken at its highest, was capable of supporting that conclusion.
4. Charge 8b. The evidence concerning the colleague’s conduct during and after the procedure, the ambiguous text messages, and the inconclusive computer-footprint evidence reasonably supported a case to answer about whether the claimant had given a misleading account. The court was not required to decide which account was true.
5. Procedural complaints. The employer acted improperly by investigating computer evidence outside the contractual procedure and failing promptly to disclose it, but the evidence was not exculpatory and the irregularity was not sufficiently serious. Obtaining an independent medical director’s view was a minor irregularity. Delay was regrettable but did not prevent a fair hearing, and bad faith was not established. The application for a permanent injunction was dismissed.

This was a first-instance application. The judgment records that an earlier interim injunction application had been determined by Martin Spencer J, but the present court was not bound by the earlier ex tempore view on whether charge 8a disclosed a case to answer.