The Court of Appeal has handed down its decision in the case of Chhabra v West London Mental Health Trust. Focusing on the handling of misconduct charges, it's a case which will be of considerable interest both to healthcare HR professionals and Trust managers with responsibility for managing conduct and performance.
The decision endorses the court's right to grant an injunction restraining a Trust from proceeding with a disciplinary process. Crucially, however, such a remedy will only be available where the employer is in breach of contract. Here, the court found that there had been no such breach of contract and quashed the injunction previously granted against the Trust.
The case concerns a consultant forensic psychiatrist who successfully applied to the High Court for an injunction to prevent the Trust from convening a conduct panel to hear charges against her.
Central to the original decision was the issue of categorisation of charges by the case manager. It focused on the decision taken by the Trust to hive off certain allegations (about breach of patient confidentiality) to deal with them as gross misconduct charges. These were to be dealt with separately from the capability related charges against the consultant. The latter were to be addressed through the usual National Clinical Assessment Service (NCAS) procedures, where the aim is to formulate an action plan to remedy any issues.
The consultant claimed that characterising the confidentiality charges in this way and putting them to a conduct panel for determination amounted to breaches of the Trust's local contractual procedures. These procedures implemented MHPS, the national policy on Maintaining High Professional Standards in the Modern NHS. She also claimed that the Trust's decision not to invoke its alternative "fair blame" process, aimed at more sensitive treatment of less serious misconduct offences, amounted to a further breach.
As to the categorisation issue, the original trial judge had accepted that the patient confidentiality charges could aptly be described as conduct issues. Importantly, however, he found that due to the connection between the conduct and capability issues, the consultant had a contractual right for the matters to be dealt with together as part of the capability process.
The original trial judge also found, on the facts, that the case manager incorrectly treated the charges as capable of amounting to gross misconduct. The case, it said, "cried out" for the application of the "fair blame" process for less serious offences.
The Court of Appeal's decision
On the fundamental question of whether the case manager was in breach of contract, in treating the charges as capable of amounting to gross misconduct, the Court of Appeal disagreed with the High Court.
The Court of Appeal recognised that as a matter of contract, the Trust had retained the right to deal with conduct and capability matters separately, in appropriate circumstances. Similarly, on the subject of the "fair blame" procedure it noted that although the process was encouraged, the Trust had expressly retained its right to deal with matters of serious and gross misconduct through a conduct panel. Importantly, it also found that the case manager had been justified, on the evidence available, in convening a disciplinary panel to hear the charges against Dr Chhabra.
The decision includes some useful comment on the respective roles of the case investigator, the case manager and the conduct panel. It stresses that it is the panel rather than the investigator which has responsibility for resolving factual issues and the panel is not confined to considering findings of fact made by the investigator. The court also makes it clear that it is for the case manager, rather than the investigator, to exercise judgement as to the seriousness of the offence and decide whether there is a case of misconduct to put to the panel.
Express support for this type of intervention by the courts can be found in last year's Supreme Court decision in Edwards v Chesterfield Royal Hospital Foundation Trust. Before Edwards, senior medical practitioners, for whom capped employment tribunal compensation often provides an inadequate remedy, had increasingly been turning to the civil courts to recover losses on dismissal. Edwards effectively put a stop to this practice. It held that common law damages for loss arising from the unfair manner of a dismissal (including loss of reputation) would not be awarded where employees were dismissed due to breaches of contractual disciplinary procedures.
What the Supreme Court did say, however, was that where an employer starts a disciplinary process in breach of an express term of the employee's contract, an employee may have grounds to obtain an injunction to stop the process.
The importance of the categorisation of charges under MHPS, leading as it does to very different processes for the treatment of conduct and capability, make this an area ripe for such challenge.
Being restrained from addressing misconduct issues can be problematic for Trusts. Delays in consideration of conduct issues may make it more difficult to deal with them in the long run. Unresolved conduct issues may also impact on the Trust's ability to make genuine progress with the resolution of capability issues.
Previous commentary from the High Court has suggested that legal action should not be used as a "vehicle for the management of internal proceedings" and that courts should restrain themselves from becoming involved in the "micro-management" of disciplinary hearings.
However, decisions about the appropriate procedural route for a Trust will often depend on the construction of the contractual terms as a whole, taking into account different policies and procedures. As made clear in this case, it is for the court to decide whether the procedure followed is lawful or not. In addition, following Edwards, the court is entitled to intervene to prevent an employer from breaching an employee's contract.
In Chhabra, the Court of Appeal has held that the Trust was not in breach of contract. The court did accept there was a threshold to be crossed before a decision to refer to a panel could properly be taken. However, it held that in this case the case manager was entitled to conclude the threshold had been crossed.
On the facts, it also suggested there may be strong mitigation. Even so, the prospect of mitigation being advanced in connection with potential disciplinary sanctions did not affect the question of whether the Trust was entitled to refer the matter to a conduct panel in the first place.
What does this decision mean for other Trusts in similar circumstances?
With increased focus on individual and Trust performance, there is more pressure to take action in these areas. As a result, we expect more capability and conduct cases to come down the tracks.
Handling conduct and capability issues against a complex framework of contractual procedures and policies can be a precarious business, particularly when a case demands dealing with both simultaneously. To avoid the potential pitfalls, it's essential that all those with responsibility for handling such procedures have a thorough knowledge and understanding of the applicable contractual rights and obligations.
Where Trusts have retained a contractual right to do so, it remains open to them to hive off conduct issues to be dealt with separately from capability matters. However, this case serves as a useful reminder that Trusts choosing this route need to be clear of the reasons why such an approach is deemed necessary.
In particular, they need to be confident that the conduct in question is not sufficiently connected to separate capability issues so as to render that course of action inappropriate or in breach of contract. The case manager also needs to be clear that the seriousness of alleged misconduct is sufficiently so to justify a particular disciplinary route.
Case managers should approach the issue of categorisation of charges with caution. It's important they remain mindful of all contractual rights and obligations, as well as the scope for expensive and time-consuming injunction proceedings should their decision be challenged.