The Supreme Court has ruled that there is an implied contractual right to a fair disciplinary process, a serious breach of which could enable an employee to obtain an injunction preventing the employer from completing that process without starting afresh.
In Chhabra v West London Mental Health NHS Trust this implied right was breached because the conclusions of the person investigating allegations had been amended extensively by an HR adviser. This was also in breach of an express undertaking by the employer not to involve that HR adviser, amounting to a breach of the implied obligation of good faith. The intervention had resulted in alleged misconduct being wrongly categorised as gross misconduct. This was also a breach of the employer’s contractual disciplinary policy, but the ruling on implied terms clearly applies even where there is no contractual policy.
The Supreme Court granted an injunction restraining the employer from proceeding with the disciplinary hearing without first carrying out a fresh investigation.
Employers should be live to the risk of an employee seeking an injunction if they fail to follow a fair disciplinary process, particularly where capped unfair dismissal compensation would be inadequate (ie, high earners) or the employee might become unemployable if dismissed (eg, in the education, medicine, or financial services sectors). The process should include ensuring that the conclusions of the person charged with investigating disciplinary allegations are the investigator’s own, and not influenced by other parties such as HR or legal.
The Court did recognise that it is legitimate for the investigator to seek advice from HR on questions of procedure, or to ensure that the report is presented clearly and covers all necessary matters. Where there has been input from a third party, it will be helpful to keep a documentary record showing its remit.