Facts

The applicant was employed by the Trust as a consultant psychiatrist. She was subject to a disciplinary investigation after a remand prisoner under her care committed suicide. The investigation report set out various allegations against her, in particular relating to failures in record-keeping and documentation, plus other failures to meet good medical practice. On the basis of the investigation report, the Trust invited the applicant to attend a disciplinary hearing to face allegations of negligence, wilful breaches of professional codes of conduct, and a breach of the duty of trust and confidence. All of these allegations were given as examples of gross misconduct in the Trust’s Disciplinary Policy and Procedure. The applicant was informed that she could face summary dismissal if the allegations were upheld.

The applicant sought an interim injunction to prevent the Trust proceeding with the disciplinary hearing. She argued that the findings of fact and evidence in the investigation report and the Trust’s statement of case could not support an allegation of gross misconduct. The question for the High Court was whether there was a serious issue to be tried as to whether the Trust was acting in breach of the applicant’s contract of employment by pursuing a gross misconduct case.

High Court decision

The High Court found that there was a serious issue to be tried. The statement of case which formed the basis of the disciplinary proceedings only took into account the definition of gross misconduct set out in the Trust’s own disciplinary procedure, and did not consider this in the context of the general law. There was clearly an argument that there had been a misdirection of law in the statement of case, and that the charges were based on conduct which might not on their face amount to gross misconduct, and could for example be attributable to errors of judgement or carelessness. Accordingly there was an arguable breach of contract claim.

When considering whether to grant an interim injunction, the courts will consider where the “balance of convenience” lies. Relevant in this case was the fact that there was no urgency to the disciplinary proceedings, given that the investigation had taken some time to complete and the applicant was continuing to work for the Trust, suggesting she was not considered to be a risk to patients. Further, the High Court determined that, if the applicant’s breach of contract claim succeeded, damages would not provide an adequate remedy, given the prejudice to her employment status and reputation. Accordingly, the High Court granted an interim injunction preventing the Trust from continuing with the disciplinary proceedings pending an expedited hearing of the applicant’s claim for breach of contract.

What to take away

It’s important to note that the case is of particular relevance to NHS employers and their management of their doctors. Generally speaking, MHPS is incorporated into the contract of employment and this allowed the applicant here to make the claim to the High Court alleging breach of contract. The case serves as a reminder that employers should be careful when drawing up disciplinary allegations, particularly where an employee’s employment status and reputation could be in jeopardy.

Even where allegations made against an employee are clearly described in the employer’s disciplinary policy as gross misconduct, this will not in itself be sufficient to proceed with a hearing in which summary dismissal is a possibility. Although courts are generally reluctant to micro manage employment proceedings, they will intervene where there is a serious issue to be tried, and where damages for breach of contract are unlikely to provide the employee with an adequate remedy.

For further information on how this issue might affect your organisation, please contact Andrew Rowland, Bridget Prosser or Ron Simms.