Rayner v Barnet, Enfield and Haringey Mental Health NHS Trust

An employer is not generally required to suspend its disciplinary process while a professional regulator considers the same conduct. The employer and regulator perform different functions and apply different standards. An employment contract may require compliance with relevant professional standards, but that does not ordinarily make the employer bound by, or required to await, the regulator’s determination. A disciplinary process conducted under an agreed contractual procedure will not ordinarily breach the implied duty of trust and confidence merely because parallel regulatory proceedings exist. The court should avoid directing an employer to outsource its disciplinary decision to a professional body. Interim injunctive relief will fail at the serious-issue stage where the employer has reasonable and proper cause to conduct its own disciplinary process.

The claimant was a psychotherapist employed by the defendant NHS Trust and registered with the United Kingdom Council for Psychotherapy. Following allegations by a former patient, the Trust investigated under its contractual Disciplinary Policy and Procedures and arranged a disciplinary hearing. The UKCP had been notified but placed its own process on hold pending the Trust’s proceedings.

An interim injunction granted by Fraser J restrained the Trust from proceeding with the hearing. On the return date, the claimant sought continuation of that injunction until the UKCP had determined whether the conduct breached its professional code. The central issues were whether the employment contract or the implied duty of trust and confidence required the Trust to defer to, or await, the UKCP process.

1. Application refused. The interim injunction was discharged. The claimant had not established a serious issue to be tried, so it was unnecessary to consider adequacy of damages or the balance of convenience.
2. There was no contractual bar to the Trust holding its disciplinary hearing before the UKCP reached a determination. The Trust’s Disciplinary Policy and Procedures expressly contemplated disciplinary proceedings preceding referral to a regulator. The employment contract did not require the Trust to await the UKCP’s decision.
3. It was arguable that a professional employee may be required by contract to comply with relevant professional standards. That did not mean that the employer was bound by the professional body’s determination. At most, a determination available when the employer made its own decision would be relevant and irrational to ignore.
4. The implied duty of trust and confidence was governed by the two-stage test stated in Mahmud v Bank of Credit and Commerce International SA [1998] AC 20 (HL): whether the conduct was calculated to destroy or seriously damage the relationship, and, if so, whether there was reasonable and proper cause. The Trust’s operation of its collectively approved and contractually agreed disciplinary procedure was not conduct meeting the first limb and, in any event, had reasonable and proper cause.
5. The Trust’s disciplinary process and the UKCP process served different purposes. The Trust was applying its own employment standards and deciding whether the employee had breached them. The UKCP was concerned with compliance with its professional code and fitness to practise. Requiring the Trust to defer the matter would improperly micro-manage or outsource its disciplinary process.
6. Smo v Hywel Dda University Health Board [2020] EWHC 727 (QB) was distinguishable because it concerned an ad hoc employer investigation alongside formal disciplinary proceedings, rather than parallel employer and professional-regulatory processes. The principles concerning parallel proceedings in Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735 (QB) and Gregg v North West Anglia NHS Foundation Trust [2019] EWCA Civ 387 supported the conclusion that no legal bar existed.

High Court (Queen’s Bench Division): Fraser J granted an interim injunction on 17 November 2020 restraining the disciplinary hearing. On the return date, Murray J refused continuation of the relief and discharged the order.