Thanks to Rosalie Snocken of Old Square Chambers for preparing this case summary.
Can a court intervene to restrain an employer from requiring an employee to face a charge of potential gross misconduct at a disciplinary hearing if the conduct complained of is not sufficiently serious to support such a finding?
Yes, holds the Supreme Court in West London Mental Health NHS Trust v Chhabra.
The Appellant is employed by the Respondent Trust as a consultant forensic psychiatrist. Proceedings in this case arose when the Appellant applied for a declaration and injunctive relief from the High Court ahead of a scheduled disciplinary hearing at which the Trust’s case manager intended to present certain matters as allegations of grossmisconduct under the Trust’s disciplinary policy.
Lord Hodge JSC (giving the only judgment) held that the evidence against the Appellant taken at its highest was not capable of supporting a charge of gross misconduct. The Court would have held that the categorisation of the Appellant’s conduct as gross misconduct was itself a sufficient ground for injunction in this case.
The Court further held, however, that an injunction should be granted also on the basis that the HR adviser involved had gone beyond his remit by suggesting extensive amendments to the investigation report, which had the effect of stiffening the criticism of the Appellant within the report. Whilst an HR adviser could advise on questions of procedure, ensuring that all necessary matters had been addressed or achieving clarity, it was not part of his remit to guide the report’s conclusions. The Court regarded this involvement as a breach of an implied contractual right to a fair disciplinary process. The Court also made criticisms of other procedural aspects in concluding that an injunction should be granted.
The Court remarked that, as a general rule, it is not appropriate for the courts to intervene to remedy minor irregularities in the course of disciplinary proceedings between employer and employee. Here however, the irregularities were serious and any common law damages that the Appellant may obtain if she were to succeed in a claim based on those irregularities after her employment were terminated might be very limited.
Specifically on Maintaining High Professional Standards in the Modern NHS (“MHPS”), the relevant NHS disciplinary procedure, the judgment also considers the respective roles of case manager and case investigator and the discretion which the Supreme Court found a Trust has, in cases where there are both capability and conduct concerns, to proceed to a conduct hearing separately where this is appropriate in the circumstances.