West London Mental Health NHS Trust v Chhabra

[2013] EWCA Civ 11

The Court of Appeal has overturned an injunction obtained by a consultant forensic psychiatrist (C) preventing her employer, a mental health NHS trust, from appointing a disciplinary panel to consider allegations of gross misconduct against her.

Following a complaint by a member of the public, who had seen C reading patient reports on a train, an outside consultant forensic psychiatrist (T) appointed by the trust found that C had breached patient confidentiality on two occasions. On the first occasion, she had read patient reports during a train journey in such a way that the patient's name and other information was visible to other passengers. On the second occasion, whilst on a train C had dictated tapes for typing up by her secretary. C admitted breaching patient confidentiality on those two occasions and offered an apology to the trust. T also considered a further disputed allegation, namely that C had engaged in telephone discussions with her secretary about patient matters whilst on public transport.

On the basis of T's investigation report, the trust's case manager dealing with the matter decided to refer C to a disciplinary panel which would hear allegations of gross misconduct. That decision was the basis of C's injunction application, in the course of which it was submitted (amongst other matters) that the trust should have invoked its 'Fair Blame' procedure to deal with the breaches of patient confidentiality, rather than referring the concerns to a disciplinary panel, which might result in C's dismissal. It was also submitted that what the trust was proposing to put before the disciplinary panel went far beyond what could properly be alleged on the basis of T's report.

In the injunction proceedings the judge found that the trust case manager had not read T's report in the correct light and proceeded on the basis of an 'enlarged criticism' of C, which T's report did not support. The judge also found that C was entitled, as a matter of contract, to have the matters determined in a way that was not gross misconduct for which she could be dismissed, and that the trust had not been entitled to categorise C's actions as gross misconduct. The judge also said that the trust's 'Fair Blame' procedure should have been invoked.

The Fair Blame procedure is set out in the trust's disciplinary policy and is expressed to be a 'different formal procedure' which can apply when potential conduct or performance issues do not constitute serious or gross misconduct. The procedure is described as reflecting a desire on the part of the trust and trade unions to 'move towards a philosophy of personal responsibility, where mistakes are openly acknowledged, individual and organisation learning takes place and changes are made to behaviour and systems to avoid such errors in the future'.

The Court of Appeal noted that it was open to an employee to seek an injunction to stop their employer starting a disciplinary process in breach of the express contractual terms of a contract of employment, citing Edwards v Chesterfield Royal Hospitals NHS Foundation Trust; Botham v Ministry of Defence [2012] 2 AC 22. However, the court also found that the trust's disciplinary policies repeatedly reserved a power to refer disciplinary matters to a conduct panel, and that an employee could use the trust's grievance procedure if they considered that the case had been incorrectly classified as gross misconduct (C had used this procedure unsuccessfully).

The crucial issue in this case was therefore whether, on the facts and evidence available, the case manager was justified in convening a disciplinary hearing. The court found that he had been. It noted that patient confidentiality was fundamental in the health service and that the case manager was entitled to regard breaches of confidentiality in a public place as a potentially serious offence, which should be considered by a disciplinary panel. Accordingly the injunction was overturned.