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Don’t forget the investigation stage of any disciplinary process

27th January, 2014

Many employers are aware of the importance of having a robust disciplinary procedure in place but the recent case of West London Mental Health NHS Trust v Chhabra highlights the equal importance of the investigatory stage of proceedings.

In the current case, C was a forensic psychiatrist of the respondent NHS Trust. C was alleged to have breached patient confidentiality by working on documents containing patients’ personal details whilst on a busy train. The Case Manager (“X”) for the Trust appointed a colleague (“Y”) to investigate matters and instructed that another colleague (“Z”) would not be involved in the investigation stage.

Y completed her report and found that C had breached (and admitted to breaching) patient confidentiality. Z was sent a copy of the draft investigation report which he made amendments to, further criticising C, despite supposedly not being involved at this stage. Further, X instructed that the Trust would also look into additional allegations, which Y had not been instructed to report on and together could potentially amount to gross misconduct. C requested that the new allegations were first investigated, to which Y reported that there was no case to answer. X then instructed that the disciplinary process would go ahead on the initial allegations only but could still amount to gross misconduct. C therefore applied for an injunction to prevent the initial allegations being potentially treated as gross misconduct.

C was granted a declaration and injunctive relief by the High Court which prevented the Trust regarding the initial allegations as potential gross misconduct. It was held that X had failed to take account for the standing of Y’s second report. The Trust appealed and the Court of Appeal overturned the decision and held that the initial allegations could in fact amount to gross misconduct. C further appealed.

In allowing C’s appeal, the Supreme Court held that the Trust could not pursue the initial allegations as gross misconduct without first re-completing an investigation under their disciplinary policy. As a general rule, the Court cannot remedy irregularities in a disciplinary process but in the current case, the irregularities were of such a serious nature that the Court could intervene. Several irregularities in the process, including the Trust not acting in a way which an objective observer would consider reasonable and breach of C’s contract in relation to the obligation of good faith, cumulatively meant that the Court could grant relief to C.

This case highlights the importance of having robust procedures in place and how the incompleteness of the investigation stage prior to the disciplinary process can result in a breach of your employee’s contract, which the court has jurisdiction to rule on.

It is easy to forget that your procedures must begin before the disciplinary proceedings do. Further, it is important to ensure that you comply with your internal policies at all times. Aaron and Partners’ expert employment team can provide in house training for managers and supervisors to advise on how to handle such matters.

For a free review of your current policies or advice on implementing policies, please contact Claire Brook on 01244 405575 or send and email to [email protected].

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