West London Mental Health NHS Trust v. Chhabra

by Gareth Price

West London Mental Health NHS Trust v. Chhabra [2013] UKSC 80:

Comment

An application for injunctive relief, arising out of a potential dismissal situation, was successful at Supreme Court level last December. This article considers the implications arising from it.

Background facts

Dr. Chhabra, employed as a consultant psychiatrist at Broadmoor Hospital, was investigated for alleged conduct issues concerning breaches of patient confidentiality. Dr. Chabbra was alleged to have, whilst on a train, discussed patients and dictated their notes. These breaches were admitted. A further alleged breach of confidentiality (speaking over the phone to a secretary about patients) was not admitted. All of these alleged breaches were to proceed, upon recommendation of the case manager, to a disciplinary hearing. Dr. Chhabra was awrned these breaches potentially constituted gross misconduct.

There were contemporaneous capability issues concerning Dr. Chhabra’s working relationship with others at her clinic. These proceeded under a separate capability procedure within the Trust.

Dr. Chhabra ultimately sought injunctive relief from that disciplinary hearing going ahead. She argued that the conduct issues ought to have been dealt with alongside the capability issues, and that the confidentiality breaches – not being serious enough to amount to gross misconduct - ought to have been dealt with under the Trust’s ‘Fair Blame’ policy.

Investigatory procedure

Under the Maintaining High Professional Standards policy (‘MHPS’), a case manager appointed a case investigator to investigate the concerns. The case investigator was responsible for leading the investigation, establishing the facts and reporting the findings. It was not the case investigator’s responsibility to decide what action should be taken and they would not be a member of any disciplinary panel.

The case investigator found such allegations, as admitted, to be ‘serious’ breaches. The case manager separated the capability and conduct allegations and set a disciplinary hearing for the conduct issues.

Dr. Chhabra invoked grievance procedures against separating the two areas of issue. That was dismissed, as was her appeal against that dismissal.

Legal proceedings

Dr. Chhabra obtained injunctive relief at first instance – having admitted to the mistakes. Judge McMullen QC found that the case cried out to be dealt with under the ‘Fair Blame’ policy. The Court of Appeal allowed the appeal – the decision on separating the areas of issue was one for the case manager, who was also entitled to regard the breaches of confidentiality as a potentially serious offence.

Supreme Court decision

The Supreme Court allowed Dr. Chhabra’s appeal, preventing the Trust from proceeding to a disciplinary hearing (without beginning again).

Although the breaches of confidentiality were serious, they could not properly be characterised as amounting to gross misconduct. They were not wilful breaches by Dr. Chhabra.

There were three other concerns expressed by the Supreme Court:

- reliance placed by the Trust on an amended version of the MHPS policy which was not in effect at the time of the alleged breaches

- the inappropriate involvement of a HR director in the case investigator’s report

- failure by the case manager to re-assess the need for disciplinary proceedings after a further report shed more light on the allegations.

Cumulatively, this was enough for the Supreme Court to remedy the irregularities in the investigatory proceedings by way of providing injunctive relief. The first and third irregularity – the qualification of the breaches as ‘gross’ and the inappropriate involvement of the HR Director – were the most serious breaches. The categorisation of the breaches as gross misconduct was itself a sufficient ground for the injunction

Comment

Discrete implications

1.      Lord Hodge did not seem to disagree with Lord Justice Pill (who gave the sole judgment at Court of Appeal level), when he said:

“The case manager is required to exercise judgment as to the seriousness of the alleged misconduct and whether a panel hearing is required… It was for him to make a judgment whether the conduct reported was sufficiently serious to require a panel hearing…. I accept that there is a threshold to be crossed, in terms of seriousness, before a decision to refer to a panel can properly be taken. I do not consider that the introduction of words such as “gross” and “wilful” are beyond his powers, provided evidence in the investigator’s report justifies their use.”

Lord Justice Pill had already stated that it was for the court and not the Trust to determine if the procedure had been lawfully followed. The difference in outcome seems purely to be the qualitative assessment of the breaches by each court.

2.      It is also clear that it was not wrong, in principle, to have the conduct and capability matters separated on these facts – giving Trust’s the backing to do so in the future if the facts warrant it.

3.      A case manager is the arbiter of what proceeds to a disciplinary hearing, not the case investigator. A case manager is not restricted by a case investigator’s report and findings.

Wider implications

Unless clear guidance is given to employees as to what will amount to gross misconduct, an employer exposes itself to a court finding that, prior to a full hearing, its categorisation of the breach or complaint terminates the disciplinary proceedings.

1.      Where a dismissal for gross misconduct could have far reaching implications for the employee’s future career, applications for injunctive relief may be more available than before – and more useful to the employee if the remedies afforded by an unfair dismissal complaint are inadequate.

2.      Reliance on this decision may only assist those who have a disciplinary procedure built into their employment contract; the decision in Barros D’Sa v. University Hospital and Warwickshire NHS Trust [2001] EWCA Civ 983 continuing to be correct.

3.      Unless clear guidance is given to employees as to what will amount to gross misconduct, an employer exposes itself to a court finding that, prior to a full hearing, its categorisation of the breach or complaint terminates the disciplinary proceedings.

4.      When an employer warns an employee that a breach or complaint is capable of amounting to a finding of gross misconduct and dismissal, it must do so only where – at the time that statement is made – such breaches could indeed amount to such.

5.      Courts should still be reluctant to ‘micro manage’ disciplinary proceedings.

6.      If the breach would amount to gross misconduct, irrespective of the errors in the disciplinary proceedings, this decision is unlikely to assist employees.