Dr Serryth Colbert v Royal United Hospitals Bath NHS Foundation Trust

An employee cannot ordinarily require an employer to call every person interviewed during a disciplinary investigation. Disciplinary procedures must be interpreted as a whole, having regard both to managerial authority and to requirements of procedural fairness.

Courts should avoid micromanaging internal disciplinary proceedings and should generally allow contractual procedures, including appeals, to run their course. Interim relief is unlikely where an alleged procedural defect can be remedied within those procedures.

A contractual obligation to provide correspondence relating to a case is not a general disclosure obligation. It does not necessarily require disclosure of an investigative report, particularly where redactions protect material concerning other employees and the material is not relevant to the disciplinary allegations.

The claimant, a consultant surgeon employed by the defendant NHS Trust, was subject to disciplinary proceedings concerning alleged bullying and inappropriate behaviour. He sought an interim injunction requiring the Trust to call employees interviewed during the investigation, provide documents in unredacted form, and comply with alleged contractual rights under Maintaining High Professional Standards in the Modern NHS and the Trust’s Managing Conduct Policy.

The Trust accepted, for the purposes of the application, that the relevant provisions might be incorporated into the employment contract. The issues were whether there was a serious issue to be tried concerning witness attendance or disclosure, and whether interim relief should be granted while the disciplinary process remained ongoing.

1. Application refused. The claimant had no real prospect of establishing that the Managing Conduct Policy gave him an unqualified right to require the attendance of employees whom the Trust did not propose to call.
2. The policy had to be read as a whole. Paragraph 5.9 appeared in the part dealing with duties owed by employees to the Trust. It enabled the Trust to require its employees to attend where it wished to call them, subject to agreement that their evidence could be questioned in another way. It did not create a separate category of management witnesses whom the employee could compel. The hearing guidelines supported that construction by distinguishing witnesses called by the investigating manager from witnesses called by the employee.
3. The disciplinary panel retained discretion to decide what evidence it needed. The claimant could make reasoned requests for witnesses and could challenge an adverse decision through the contractual appeal process. The court should not intervene prematurely where any unfairness could be corrected internally.
4. There was no serious issue concerning disclosure. The Managing Conduct Policy required documents that would be considered at the hearing to be provided with the invitation letter. No hearing was currently fixed and the Trust had undertaken to provide the relevant bundle before the rescheduled hearing.
5. Maintaining High Professional Standards in the Modern NHS required an opportunity to see correspondence relating to the case, not general disclosure of every document. Applying Burn v Alder Hey Children’s NHS Foundation Trust, an investigative report was not correspondence merely because it had been sent from one person to another. In any event, the redacted material concerned other individuals and was not shown to be relevant to the claimant’s disciplinary case. Confidentiality safeguards could also justify redaction.
6. Applying American Cyanamid v Ethicom, the balance of convenience favoured withholding relief. The internal process and any appeal should be allowed to run their course. The court therefore dismissed the application for an interim injunction.