It is not often that courts intervene to decide that an employer cannot invite an employee to a disciplinary hearing at which she could be dismissed. But that is exactly what the Supreme Court has decided in West London Mental Health NHS Trust v Chhabra on the basis that the alleged conduct was not serious enough to support a charge of gross misconduct.
Basic facts
Dr Chhabra started work as a consultant forensic psychiatrist for the Trust in September 2009. In December 2010, following concerns about her performance, the Trust’s medical director, Dr Broughton, initiated an investigation into allegations that she had breached patient confidentiality by discussing an incident regarding a patient and dictating patient records when travelling on a train. He also raised concerns about working relationships within her clinical team.
The investigation was carried out by a consultant psychiatrist from another trust, Dr Taylor, under the auspices of the national policy framework known as “Maintaining High Professional Standards in the Modern NHS” (MHPS), which was incorporated into Dr Chhabra’s contract. Contrary to the policy, an undertaking by the Trust and Dr Chabbra’s wishes, Dr Taylor sent a draft of her report to the associate human resources director, Mr Wishart. He amended the report to characterise the breaches of confidentiality as “serious”.
On 12 August 2011 Dr Broughton wrote to Dr Chhabra telling her that the concerns about team working would be dealt with as an issue of capability. However, she would be asked to attend a disciplinary hearing about the breaches of confidentiality, which included allegations that did not form part of the remit of Dr Taylor’s investigation. He made clear that the charges constituted potential gross misconduct and that dismissal was a possible outcome. By the date of the proposed disciplinary hearing one of the allegations which led to the disciplinary referral had been reinvestigated and dismissed.
Decisions of lower courts
Arguing that the Trust should deal with both the capability and conduct issues together under the MHPS policy, Dr Chhabra applied successfully to the High Court for a declaration and an injunction preventing the disciplinary panel from investigating the confidentiality concerns as matters of gross misconduct.
The Court of Appeal upheld the Trust’s appeal on the basis that Dr Broughton was entitled to regard the breach of confidentiality as a potentially serious offence and as a result was justified in deciding to convene the conduct panel.
Supreme Court
The Supreme Court overturned the decision of the Court of Appeal because of four “irregularities” in the proceedings against Dr Chhabra, such as the changes made by Mr Wishart to Dr Taylor’s report. His intervention also constituted a breach of the undertaking made by the Trust to Dr Chhabra and was therefore contrary to the obligation of good faith in her contract with the Trust and a breach of the agreed MHPS procedures which also had contractual effect.
In any event, the Supreme Court did not think that Dr Taylor’s findings were capable of supporting a charge of gross misconduct under the Trust’s policy. This in itself was sufficient grounds for an injunction preventing the Trust from proceeding with the disciplinary action against Dr Chhabra.
However, it was up to the Trust to decide whether to combine issues of capability and conduct in a capability hearing and whether to convene a conduct panel for the discrete complaints about her conduct although they were not serious enough to warrant dismissal.
The Supreme Court therefore granted Dr Chhabra an injunction restraining the Trust from pursuing any of the confidentiality concerns contained in the Trust’s letter of 12 August 2011 as matters of gross misconduct; and from pursuing any confidentiality concerns without first re-starting and completing an investigation under the MHPS policy.