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 [2013] 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.

Background

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.

Facts

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.

Comment

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.