The Supreme Court has upheld a decision to grant an injunction preventing an employer from continuing with a disciplinary hearing scheduled to consider allegations of gross misconduct where the alleged conduct was not sufficiently serious to support a charge of gross misconduct under the employer's contractual disciplinary procedure and an HR member was involved in producing the investigation report in breach of an express undertaking.
West London Mental Health NHS Trust v Chhabra
Dr. Chhabra is a consultant forensic psychiatrist at West London Mental Health NHS Trust (the "Trust"). A number of concerns came to the Trust's attention which suggested she may have breached patient confidentiality. An investigator was appointed to investigate these concerns pursuant to the Trust's contractual procedures.
Dr. Chhabra was concerned that a particular Associate HR Director, Mr. Wishart, who had been involved in dealing with previous concerns about Dr. Chhabra's performance, should not be involved in the investigation. The Trust gave a written undertaking that he would have no part in the process. However, in breach of this undertaking, Dr. Wishart advised the investigator and was also involved in amending findings from the investigation report in a way which stiffened the criticism of Dr. Chhabra in relation to the allegations of confidentiality breaches.
The Trust took the view that the confidentiality breaches potentially constituted gross misconduct and scheduled a disciplinary hearing to consider the allegations. Dr. Chhabra applied successfully to the High Court for injunctive relief. On appeal, the Court of Appeal overturned the High Court's decision. Dr. Chhabra appealed to the Supreme Court.
The Supreme Court reinstated the High Court's decision. The Court noted that the disciplinary procedure was contractual and concluded that there had been a number of procedural irregularities which it considered cumulatively rendered a disciplinary hearing unlawful as a material breach of Dr Chhabra's contract of employment.
The principal concern it had was that the investigator's findings did not support a charge of gross misconduct. Under the Trust's contractual disciplinary process, gross misconduct was described as conduct so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. The Court considered that there was no material in the investigation report to support the view that the breaches of confidentiality were wilful, deliberate breaches. The breaches committed by Dr. Chhabra were qualitatively different from a deliberate breach of confidentiality and did not support a charge of gross misconduct. The Court considered that this procedural irregularity in itself would have been sufficient grounds to uphold the injunction.
The Court also considered that Dr. Wishart's continued involvement in the disciplinary process in breach of the undertaking given by the Trust was a breach of the duty of good faith and express obligation to conduct the process reasonably, contained in Dr. Chhabra's contract of employment. The Court stated that while it is generally fine for a case investigator to seek advice on issues such as questions of procedure from other members of the HR department, Dr. Wishart's involvement in this case went far beyond this in that he was able and did influence the findings of the investigation report which had the effect of stiffening the criticism of Dr. Chhabra. This was a breach of the Trust's procedure which required the investigator to produce the investigation report.
The Court observed that as a general rule, it is not appropriate for the courts to intervene to remedy minor irregularities in the course of disciplinary proceedings. However, in this case, the irregularities were so serious as to justify the injunction to prevent the disciplinary hearing proceeding. The Court was influenced by the limited damages which would be available for breach of the disciplinary procedure in the light of the decision in Edwards v Chesterfield. A copy of our previous alert on this case can be found here.
This case is concerned with the application of a contractual disciplinary policy and is unlikely to assist employees where the disciplinary policy is non-contractual. There is a reference to an implied contractual right to a fair process in the Supreme Court's decision, which employees may use to try to argue a breach of contract even where a procedure is not expressly contractual. However, we consider that the Court was intending to limit this to the specific wording of the contractual disciplinary policy in this case.