UKSC 80
On appeal from:  EWCA Civ 11
West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
18 December 2013
Heard on 29 October 2013
Mark Sutton QC
(Instructed by RadcliffesLeBrasseur)
Jane McNeill QC
(Instructed by Capsticks Solicitors)
LORD HODGE, (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree)
The relevant procedures
(1) An employing trust took on responsibility for disciplining doctors and dentists whom it employed;
(2) Doctors and dentists were made subject to the same locally-based misconduct procedures as other staff members;
(3) The same disciplinary procedures applied to all doctors and dentists employed in the NHS;
(4) The new disciplinary procedure replaced the disciplinary procedures contained in circular HC(90)9, which I discuss in paras 16 and 17 below; and
(5) There was a single process for dealing with concerns about the professional capability of a doctor or dentist, which tied in with the work of the National Clinical Assessment Authority ("NCAA"). This involved the preparation of an action plan to address the concerns about capability. But if that plan had no realistic chance of success, there would be a capability hearing before a panel.
"The case investigator is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings."
It was the responsibility of the case investigator to decide what information needed to be gathered and how it should be gathered. It was envisaged that this could involve both written statements and oral evidence. The practitioners who were the subject of investigations were entitled to see a list of the people whom the case investigator would interview. The practitioners were to be given an opportunity to put their view of events to the case investigator and were to have the opportunity to be accompanied when they did so. The case investigator's report was to give the case manager sufficient information to enable him or her to decide whether, among other things: (i) there was a case of misconduct which should be considered by a disciplinary panel; (ii) there were concerns about performance that should be explored by the NCAA; (iii) there was a need to consider restrictions on the practice of the practitioner or his or her exclusion from work; and (iv) there were intractable problems about performance which should be put before a capability panel.
The Trust's implementation of MHPS
"Uphold the Trust's policies on freedom of and disclosure of information. Do not abuse knowledge. Use appropriate private locations for discussions of a personal nature and use e-mail correspondence cautiously."
"It is a fundamental principle of all disciplinary action that employers and managers must act in a way which an objective observer would consider reasonable…"
It provided that the member of staff had to be told in writing of the complaint in advance of any disciplinary hearing (para 3.6) and stated that no formal hearing should be convened until there was sufficient evidence to suggest that there was potentially a case to answer (para 3.8). In para 13 it identified misconduct which might result in disciplinary action under three categories: minor, serious and gross. Serious misconduct was defined as "misconduct … which is not so severe as to warrant dismissal but is too serious to be considered as minor". In para 13.4.1 it described gross misconduct in the following terms:
"Some instances of misconduct/poor performance will be so serious as to potentially make any further relationship and trust between the Trust and the employee impossible."
It listed typical examples of such conduct. In January 2011, after the events which gave rise to disciplinary proceedings in this case, the Trust amended that list with effect from 28 March 2011 to include:
"serious breaches of information governance with regard to data protection, confidentiality and information security".
The policy also set out in section 15 and appendix 5 a "fair blame" procedure which could apply "when the potential conduct or performance issues …do not constitute serious or gross misconduct".
"Before disciplinary action is taken, it is essential to establish the facts through an investigation."
In para 2, it answered the question "Why is the investigation important?" thus:
"2.1 to establish as far as practicable what has happened and why.
2.2 to ensure future decisions are rational and made on the basis of evidence.
2.3 to meet the requirement to demonstrate that natural justice has been observed.
2.4 to form the basis of any case presented to a Disciplinary Panel.
2.5 to ensure decisions made by the trust are capable of scrutiny either through an internal appeal or by an Employment Tribunal or court of law."
The appendix advised the manager carrying out the investigation on how to conduct and record interviews and on the preparation and content of the investigatory report. Para 5 stated that the investigatory officer would be required to present findings to a formal hearing "if there is a prima facie case of misconduct and their report would form the basis of their verbal presentation". In para 9 the guidance stated that the report should contain conclusions, including whether there was a disciplinary case to answer at a formal hearing. It stated that the conclusion might suggest
"whether the misconduct (if proven) could constitute serious or gross misconduct, or whether the Fair Blame procedure should apply".
The report was to have appendices including records of witness interviews and statements (para 10). Para 11 instructed the investigatory officer to ensure that key witnesses were available for the hearing before the disciplinary panel to enable their evidence to be scrutinised by the employee and the panel.
"leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings".
The case investigator was charged with collecting sufficient written statements and oral evidence to establish a case before it was decided whether to convene a disciplinary panel. He or she had to keep a written record of the investigation, the conclusions reached and the course of action agreed by the director of human resources and the medical director. The case investigator did not decide on what action should be taken and would not be a member of a disciplinary panel in the case (para 1.14). The purpose of the investigation was to ascertain the facts in an unbiased manner (para 1.17). The case investigator was to complete an investigation within four weeks and thereafter to submit a report to the case manager, giving sufficient information to enable the latter to decide, among other things, whether there was a case of misconduct that should be put to a conduct panel (para 1.19).
"It is inevitable that some cases will cover both conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. Although it is for the Trust to decide upon the most appropriate way forward having consulted the NCAS[,] [i]n the event of a dispute the practitioner may make representations to the designated board member. The individual is also entitled to use the Trust's grievance procedure if they consider that the case has been incorrectly classified."
The events in this case
"Whilst it is necessary to set out formal employment arrangements in this contract, we also recognise that you are a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgements and decisions. It is essential therefore that you and we work in a spirit of mutual trust and confidence."
The clause then listed several mutual obligations, including cooperation and maintaining goodwill. It was common ground that policies D4 and D4A were incorporated into the contract of employment so far as they were apt for incorporation.
(1) The allegation of breach of patient confidentiality during the train journey on 24 November 2010;
(2) An allegation that Dr Chhabra had dictated patient reports when travelling on a train;
(3) The concerns about Dr Chhabra's working relationship with her clinical team; and
(4) The solicitor's complaint dated 1 October 2010.
After Dr Chhabra expressed concerns that Mr Wishart should not be involved in the investigation, solicitors acting on behalf of the Trust wrote a letter to her solicitors dated 24 February 2011 in which they undertook that Mr Wishart would take no part in the investigation.
The legal proceedings
Discussion of the legal challenges