Disciplinary hearings and injunctions: The Supreme Court's view

Supreme Court Main Entrance 03521C press office supplied  146x219The Supreme Court has granted an injunction to prevent a disciplinary hearing from taking place. Guy Bredenkamp and Sean Reynolds examine the ruling.

In the case of West London Mental Health NHS Trust v Chhabra [2013] UKSC 80 Dr Chhabra is employed by the Trust as a consultant forensic psychiatrist. Proceedings in this case arose when Dr Chhabra 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 gross misconduct under the Trust’s disciplinary policy.

Concerns had been raised about Dr Chabbra relating to allegations that she had discussed a patient, dictated reports and read documents which contained a patient’s personal details while on a busy train. A case investigator was appointed by the Trust to investigate these allegations. The case investigator found in her report that Dr Chhabra had unwittingly breached, and admitted breaching, patient confidentiality. The Trust had also undertaken to Dr Chhabra that Mr Wishart, its associate HR director, would take no part in the investigation. However, Mr Wishart was sent a draft of the case investigator’s report and amended it to strengthen the criticism of Dr Chhabra.

Gross misconduct was generally defined in the Trust’s policy as conduct so serious "as to potentially make any further relationship and trust between the Trust and the employee impossible". Based upon this definition the Court considered that the evidence against Dr Chhabra taken at its highest was not sufficiently grave to amount to gross misconduct, and that this finding alone was a sufficient ground for an injunction.The Court contrasted Dr Chhabra’s unwitting breach of confidentiality with a deliberate breach of confidentiality such as speaking to the media about a patient.

The Court also decided that the injunction was justified by Mr Wishart’s extensive amendments to the investigation 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 or to, in effect, re-write the report so that it no longer accurately recorded the case investigator's views. The Court regarded his involvement as a breach of contract and also a breach of the right to a fair disciplinary process. The Court also made criticisms of other procedural aspects in concluding that an injunction should be granted.

The Supreme Court also confirmed that the decision about whether allegations that have been investigated under Maintaining High Professional Standards (MHPS) should then be dealt with as conduct or capability, or both, is for the case manager.

What this means for NHS employers


This case does not indicate that the courts will regularly be intervening in internal disciplinary matters, but the court did note that dismissal damages are capped under statute, so that in many cases concerning clinicians, who have a contractual entitlement to a statutory disciplinary and capability framework, an injunction is the only form of legal relief that is available to them and which is proportionate to their potential loss. 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. However, in this case, the irregularities were of a serious nature. Employers should be careful to adhere to their own disciplinary procedures and fully consider whether allegations could constitute misconduct or gross misconduct in accordance with the wording of the policy at the time of the conduct.

In addition it is important that when someone is tasked with investigating allegations of misconduct that his or her conclusions should not be unduly influenced by others, and that any revision of documents is not so extensive as to amount to a complete re-write. The role of the HR advisor should be limited to advice on questions of procedure and perhaps presentation of a report but not stray into involvement in decision making.

In cases which cover both capability and conduct issues it is for the case manager to decide which procedure should be adopted. The case manager has discretion, however, the decision whether to pursue a conduct issue separately is one that should be made on the basis of what is appropriate in the circumstances.

The starting point for what is appropriate is that where there are mixed conduct and capability issues then they should both be dealt with under the capability procedure. This is the default setting. Departure from the default setting is permissible but it must be appropriate to do so in the particular circumstances of the case. For example, where there are allegations of clinical capability and personal misconduct it would normally be appropriate for them to be dealt with in separate hearings if the misconduct was unrelated to the capability issues.

Guy Bredenkamp is a Partner and Sean Reynolds is a Consultant at DAC BeachcroftGuy can be reached on 0191 404 4076 or byThis email address is being protected from spambots. You need JavaScript enabled to view it.