The Supreme Court has upheld an injunction granted by the High Court to prevent a disciplinary hearing from going ahead in breach of an NHS Trust’s staff policy on conduct and capability.

The claimant in the case, Dr Chhabra, was a consultant forensic psychiatrist employed by the Trust about whom a number of complaints had been made in relation to her performance at work.  Among the complaints was the allegation that she had breached patient confidentiality by dictating reports and reading documents while on a busy commuter train.

The Trust launched an investigation into the alleged misconduct.  Its policy on conduct and capability specified how it should deal with disciplinary matters and distinguished between three levels of misconduct: minor, serious and gross.  Following the completion of an investigation report, the Trust decided to treat the confidentiality issues as potential gross misconduct and to hold a disciplinary hearing.

Dr Chhabra sought an injunction to prevent the disciplinary hearing from going ahead.  An injunction was granted by the High Court but this decision was overturned by the Court of Appeal.  The question for the Supreme Court to decide was whether the case manager who was investigating the confidentiality issues was justified in convening a disciplinary hearing.

The Supreme Court found there were a number of irregularities in the disciplinary proceedings against Dr Chhabra that cumulatively rendered the convening of a disciplinary hearing as unlawful and a material breach of the doctor’s contract of employment.

These included:

1. the findings in the investigation report not being sufficiently serious as to warrant classification as gross misconduct;
2. the case manager’s reliance on a version of the policy that had not existed at the time of the misconduct;
3. the Trust allowing amendments to the report by a human resources director who the parties had agreed would not participate in the investigation; and
4. the case manager’s failure to reassess the appropriate course for the disciplinary proceedings following the production of a second investigation report.

The Supreme Court directed that the Trust carry out a fresh investigation into the confidentiality concerns and be prevented from pursuing the confidentiality issue as a gross misconduct matter.