Contractual disciplinary policies

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In December, the Supreme Court heard an appeal against the High Court decision of West London Mental Health NHS Trust v Chhabra. The Supreme Court agreed with the High Court that an injunction should be granted to prevent the Trust from proceeding with disciplinary action for gross misconduct. The allegation involved confidentiality concerns following a complaint by another civil servant about the consultant forensic psychiatrist’s breach of confidentiality whilst on a train.

The Supreme Court found that the Trust has to carry out a new investigation first and the flaws in the disciplinary process were so serious that they breach the psychiatrist’s contract of employment. In this case the findings had not supported the charge of gross misconduct and despite an undertaking otherwise the HR Director had taken part in the investigation including making amendments to the investigation report.

Whilst injunctions are unusual, this case illustrates the importance of allowing flexibility in a disciplinary policy to fit the needs of the situation by not making it a contractual policy. If the disciplinary policy is not contractual then an employee cannot apply for an injunction as there would be no contractual breaches. These sort of cases commonly arise in NHS Trusts but can also occur in large organisations of other parts of the public sector.

Written by
Edward Aston
14th January 2014