The High Court has held in Ardron v Sussex Partnership NHS Foundation Trust that, in a case of alleged gross misconduct, the employer does not have to consider each alleged failing individually. Instead, if they are inter-related, they should be considered cumulatively. The temporary injunction stopping the employer from going ahead with disciplinary proceedings should therefore be discontinued.
Basic facts
Dr Ardron, a highly experienced consultant psychiatrist employed by the Trust, was responsible for the care of a young prisoner known as JO, who committed suicide. After his family complained, the Prison and Probation Ombudsman carried out an investigation and issued a report noting that he had not had a psychiatric review for about two months prior to his death and that his prison health records were incomplete.
The Trust also carried out its own Serious Incident investigation, which identified a number of problems, some of which fell within Dr Ardron’s remit. In particular, its investigatory report stated that her conduct had not met professional standards of good practice in relation to record keeping and other documentation such as the absence of treatment and risk management plans. In addition, although she had diagnosed JO as suffering from a psychotic illness, she had failed to prescribe any medication for him.
The Trust argued that these failures were contrary to the requirements of Maintaining High Professional Standards in the Modern NHS (MHPS) and could constitute gross misconduct under the Trust’s disciplinary policy. As a result, it decided to bring disciplinary proceedings against her for alleged gross misconduct.
Dr Ardron’s claim
Dr Ardron brought a claim in the High Court arguing that the Trust had not established a basis for bringing a charge of gross misconduct which could potentially lead to the termination of her employment and have serious ramifications in terms of finding a post as a psychiatrist elsewhere.
She was initially granted a temporary injunction restraining the Trust from continuing with the disciplinary hearing. The question for the High Court in this case was whether to make the injunction permanent.
Dr Ardron argued that gross misconduct required either gross negligence or willful default, and that, taken individually, none of the allegations against her amounted to a case of gross misconduct. As such, the Trust would be in breach of its disciplinary policy, and therefore in breach of her contract, if it continued with the hearing against her on the basis of gross misconduct.
High Court decision
The High Court judge rejected her argument that each failing should be considered individually as they were inter-related and should therefore be considered cumulatively. Having said that however, the judge then held that, even if he had found that each issue should be considered separately, the failure to prescribe medication would have been sufficient.
The findings by the case investigator were therefore sufficient to amount to a “prima facie” case of misconduct, meaning that it was not a breach of contract for the Trust to bring a case of gross negligence against Dr Ardron.
There was, therefore, no basis for the injunction to continue.