Where a disciplinary procedure forms part of an employee’s contract of employment, civil remedies for breach of contract can come into play during the course of disciplinary proceedings. In the long-running case of West London Mental Health NHS Trust v Chhabra  UKSC 80, the Supreme Court has overturned the Court of Appeal’s decision and granted an injunction preventing an NHS trust from holding a disciplinary hearing against a consultant psychiatrist, who had been facing allegations of gross misconduct.
An injunction is a court order that requires a party to do or refrain from doing a specific act or acts. Breach of an injunction constitutes contempt of court, which can lead to a criminal sanction for the breaching party. An injunction may be sought to restrain a party from committing a breach of contract so it can be relevant where a disciplinary procedure forms part of a contract of employment, such as in the NHS.
Dr Chhabra was employed by West London Mental Health NHS Trust (the Trust) as a consultant forensic psychiatrist at Broadmoor Hospital. The Trust’s disciplinary policy and policy for handling concerns about a doctor’s performance were both incorporated into Dr Chhabra’s contract of employment. The policies provide for the investigation of allegations of misconduct or poor performance by a case investigator, who produces a report for review by a case manager, who then decides whether the matter should proceed to a conduct panel (in the case of serious or gross misconduct) or to a less serious ‘Fair Blame’ process (where the allegations do not constitute serious or gross misconduct).
Various concerns were raised about Dr Chhabra during her employment, including allegations that she had breached patient confidentiality by discussing patients, dictating reports and reviewing documents containing confidential patient information from which patients were identifiable on a busy train.
During the investigation, Dr Chhabra raised concerns about the Trust’s HR director and requested that he play no part in the investigation. The Trust agreed and undertook to Dr Chhabra that the HR director would not be involved. During the investigation, Dr Chhabra admitted some of the allegations of breaching patient confidentiality. In spite of the Trust’s assurances, the HR director reviewed the report prepared by the case investigator and made significant changes to it, which had the effect of stiffening the criticisms of Dr Chhabra. These included the characterisation of the breaches of confidentiality as serious misconduct.
The case manager wrote to Dr Chhabra’s solicitors, informing them that the allegations against Dr Chhabra potentially constituted gross misconduct and that the matter would proceed to a conduct panel hearing. The case manager’s letter referred to two further allegations of breaching patient confidentiality, which had not been investigated by the case investigator. The Trust subsequently agreed that the case investigator would investigate the further allegations and a second report was produced. The report concluded that there was no case to answer in respect of the further allegations. A conduct hearing was arranged to consider the allegations of gross misconduct against Dr Chhabra but was abandoned when she sought an injunction from the High Court.
High Court decision
In the High Court, Judge McMullen QC granted Dr Chhabra’s application for an injunction, preventing the Trust from considering the allegations as a matter of gross misconduct. The judge considered that the case manager had breached Dr Chhabra’s employment contract by treating the allegations as potentially constituting gross misconduct, concluding that the allegations should have been dealt with under the ‘Fair Blame’ procedure. The judge also held that the case manager had erred in including allegations that had not been part of the first investigation report and had failed to re-assess the gravity of the charges following the second investigation report. The Trust appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal upheld the Trust’s appeal and set aside the injunction. The Court held that the case manager was not confined to the findings of the report under the Trust’s procedure and had the right to exercise judgement as to the seriousness of the allegations and refer the matter to a conduct panel if the allegations were indeed serious enough to constitute gross misconduct. The Court held that the case manager was entitled to regard the breaches of confidentiality as potentially constituting gross misconduct and was justified in referring the matter to a conduct panel. Dr Chhabra appealed to the Supreme Court.
Supreme Court decision
The Supreme Court upheld Dr Chhabra’s appeal and granted an injunction to stop the disciplinary hearing taking place.
Lord Hodge gave the leading judgment, in which he concluded that the allegations against Dr Chhabra were not capable of supporting a charge of gross misconduct on the wording of the Trust’s disciplinary policy, noting that there was no suggestion that the breaches of confidentiality had been deliberate. The decision to refer the matter to the conduct panel had therefore constituted a breach of contract.
The Court also considered that the changes made by the HR director to the first investigation report, following assurances that he would play no part in the investigation, and the failure of the case manager to re-assess the charges following the second investigation report, also constituted breaches of the Trust’s procedures and therefore amounted to a further breach of contract.
Lord Hodge stated in his judgment that, as a general rule, it was not appropriate for courts to intervene and ‘micro-manage’ disciplinary proceedings by remedying minor irregularities but that the cumulative effect of the breaches in this case was serious enough to justify intervention. Accordingly, the injunction sought by Dr Chhabra was granted.
This case highlights the potential issues that can arise where an employer’s disciplinary procedure forms part of the contract of employment of its employees: had the procedure been non-contractual, no breach of contract could have been inferred and injunctive relief would not have been available to the employee.
The use of injunctive relief in disciplinary proceedings will undoubtedly remain rare, given the significant legal fees associated with pursuing this remedy and the possibility of having to pay the costs of the other party if the action is unsuccessful.
However, the facts of this case do serve as a useful reminder of the traps an employer can fall into in conducting a disciplinary process: adding further allegations following an investigation, failing to investigate new allegations, not reconsidering the severity of the charges following the investigation of new allegations and interfering with the investigatory stage of a disciplinary process are all likely to render a disciplinary process unfair, regardless of whether the process is contractual in nature, and could lead to a finding of unfair dismissal if the employee is dismissed. The case is also a good reminder that your disciplinary procedure should be very clear as to what constitutes gross misconduct.