As an employer you will already be aware that if you do not follow a fair disciplinary process then you are likely to end up with a finding of unfair dismissal in any subsequent Tribunal proceedings, but have you ever thought that you might be prevented from going ahead with the disciplinary process in the first place? This is what happened in West London Mental Health NHS Trust v Chhabra, when the Supreme Court granted an injunction to prevent an employer from pursuing allegations of gross misconduct at a disciplinary hearing.
Dr Chhabra is a forensic psychiatrist employed by West London Mental Health NHS Trust (the Trust). In 2010, she was suspended from work following allegations that she had breached patient confidentiality by discussing patients and dictating patient reports on a train. In accordance with the Trust’s contractual disciplinary procedure, an independent case investigator was appointed to investigate these issues.
During the investigation, Dr Chhabra admitted that she had breached patient confidentiality, albeit unintentionally. Following receipt of the case investigator’s report, the case manager decided that the alleged breaches of confidentiality were sufficiently serious that they should be put before a disciplinary panel with an eye to her dismissal. A disciplinary hearing was fixed for 9 March 2012, but in the end the hearing did not take place because Dr Chhabra took the unusual step of obtaining an injunction from the High Court to stop the disciplinary panel investigating the confidentiality concerns as matters of gross misconduct under the Trust’s disciplinary procedure. She argued that the allegations were not serious enough to warrant this and should have been dealt with under the Trust’s “Fair Blame policy”, which was reserved for less serious cases not justifying dismissal.
The High Court’s decision was overturned by the Court of Appeal and the matter proceeded to the Supreme Court. In an unusual move, it decided to grant the injunction to prevent the Trust from pursuing any of the patient confidentiality concerns against Dr Chhabra as matters of potential gross misconduct, meaning that the Trust was effectively prevented from dismissing her for these reasons. It also said that the Trust could not even pursue any of the confidentiality allegations against Dr Chhabra without first re-starting and completing a whole new investigation under its disciplinary procedure.
The Supreme Court was prepared to grant an injunction in this case, it said, because there were a number of procedural irregularities in the proceedings against Dr Chhabra which, especially when taken together, rendered the convening of the disciplinary panel a material breach of her contract of employment. It is worth exploring these irregularities a little further, not least because they are the sort of things that can catch other employers out. In summary they were:
- The Trust did not have sufficient evidence to support a charge of gross misconduct against Dr Chhabra, especially in light of its own policy which talked about conduct so serious “as to potentially make any further relationship and trust between the Trust and the employee impossible”. The Supreme Court pointed out that the admitted breaches of confidentiality were not wilful, in the sense that they were not deliberate disclosures akin to speaking to the media about a patient. It accepted, however, that there was still sufficient evidence to support a complaint of serious misconduct against Dr Chhabra, but not gross. Interestingly, the Supreme Court said that the Trust’s categorisation of Dr Chhabra’s conduct as gross misconduct when it so clearly was not was itself sufficient grounds for an injunction.
- The Trust had relied on an example of gross misconduct in its policy (“serious breaches of information governance with regard to data protection, confidentiality and information security”) which had only been included in the policy after the incidents in this case had taken place. In other words, it had not spelt out to its employees before that point that such conduct was so serious in its eyes.
- The Trust’s HR Adviser had been involved in the investigation behind the scenes, despite the Trust having told Dr Chhabra expressly that he would not be (in light of previous concerns raised by her about his impartiality). Furthermore, the Adviser had made extensive amendments to the case investigator’s report which had “strengthened her criticism” of Dr Chhabra and tipped the sentiment of it further against her. The Supreme Court said that whilst it was legitimate for an HR Adviser or similar person to assist a case investigator in the presentation of a report (e.g. to ensure that all matters have been addressed and to achieve clarity), the Trust’s Adviser had overstepped the mark by the nature of the changes he made and the impact they had on the tone of the investigator’s report. The Adviser was therefore not just involved but would have had an active hand in the outcome. This not only constituted a breach of the Trust’s own contractual disciplinary policy and the undertaking it had given, but it also breached Dr Chhabra’s “implied contractual right to a fair process” and “undermined the fairness of the disciplinary process”
- Finally, the Trust had failed to re-assess the overall seriousness of the allegations against Dr Chhabra in light of a second report from the case investigator finding no grounds to proceed with an additional complaint that had been raised against her during the initial investigation.
This case is certainly unusual – the Courts do not normally grant injunctions to prevent employers from doing something wrong in disciplinary procedures. The Supreme Court itself acknowledged that it will not normally be appropriate for the courts to intervene to remedy minor irregularities in the course of disciplinary proceedings, accepting that its role is not the “micro-management” of such proceedings. If grounds for dismissal do not exist or the process is botched, surely that is dealt with by wrongful and unfair dismissal claims? So why did the Court act here? It is not altogether easy to tell from the Judgment, the injunction being a discretionary remedy, but the main points appear to be these: (i) that the Trust’s disciplinary procedures were both detailed and contractual; (ii) Dr Chhabra’s damages claims if the dismissal went ahead would be very limited relative to the losses she would incur; (iii) the conduct alleged was so clearly not gross misconduct as defined in the Trust’s policy; and (iv) the Supreme Court really took against the Trust as a result of the behind-the-scenes manipulation of the investigation report by the HR Adviser.
This case will be of particular interest to employers with contractual disciplinary procedures, where a failure to comply with the procedure would constitute a breach of the employee’s contract of employment, thus potentially giving rise to a cause of action. The Supreme Court made it clear in Edwards v Chesterfield Royal Hospital NHS Trust; Botham v Ministry of Defence  that this is a route that is open to an employee where there has been a breach of the express terms of the contract of employment. But could it potentially also be relied upon by employees who do not have a contractual disciplinary procedure in light of the Supreme Court’s throw-away observation in this case that Dr Chhabra had “an implied contractual right to a fair process”? This could seem to suggest that even breaches of a non-contractual disciplinary procedure (if sufficiently serious) may give rise to a potential cause of action for an injunction. We think that would be scare-mongering, and that the “implied contractual right to a fair process” can only exist where there is a contractual dismissal procedure.
This decision does not mean that employees are going to be rushing off to the High Court en masse to obtain injunctions to prevent disciplinary hearings going ahead. There may, however, be circumstances in which employees are prepared to go down this route, notwithstanding the risks and costs of doing so. The most obvious example would be senior employees or professionals who would find it impossible to work in their chosen profession if a disciplinary hearing led to their being dismissed for gross misconduct, especially where the remedies available post-employment may be limited. Furthermore, it is only going to be relevant where there have been serious breaches of the disciplinary process which must limit it at best to those cases where the breach of contract could be said to have led (or be going to lead) to a materially different outcome. Matters of pure process without impact on the end result seem safe from Court scrutiny for the time being.