08 February 2013 #Employment
The recent case of West London Mental Health NHS Trust v Chhabra confirms the need to exercise great care to ensure that disciplinary procedures are not contractually binding on employers. If a court is able to construe a disciplinary procedure as having contractual effect, a breach of the procedure could lead to the employee seeking a court injunction preventing the disciplinary procedure going ahead.
In this case, it was alleged that Dr Chhabra, had breached patient confidentiality when discussing a patient’s case on the train, which was overheard by another passenger sitting close by. The Trust appointed an independent case investigator who reported to a case manager. The case manager determined that allegations of misconduct in relation to the breach of confidentiality would be referred to a disciplinary panel, which could determine that she should be dismissed.
Dr Chhabra alleged that the Trust, in breach of contract, should have treated the matter as less serious and followed a different procedure which could impose lesser sanction. Dr Chhabra brought proceedings to the High Court seeking an order restraining the Trust from proceeding with the disciplinary hearing. The High Court held that the proposed hearing amounted to a breach of the doctor`s contract, that in the circumstances they had used the wrong procedures, and injuncted the Trust from proceeding.
On the facts of the case, the Court of Appeal unanimously allowed the Trust`s appeal. It was for the case investigator to provide sufficient information for the case manager to determine whether there was a case of misconduct that should be put to a disciplinary panel. However, the case emphasises the pitfalls of not making clear in policy documentation that disciplinary procedures are not part of the contract of employment.
Of course, lessons are also learned not to talk loudly on public transport about matters which may be confidential. Employers should also be wary of putting their staff in positions where, due to time pressure or other circumstance, they have to deal with sensitive matters when travelling on business.