Decision to grant injunction was inappropriate in the circumstances
More and more employees carry out work outside of the traditional office environment and technology such as mobile phones and laptops, and more recently smart phones and tablet computers, allow access to confidential information in almost any location. In addition, many employees take confidential papers out of the office to work from home.
The decision in West London Mental Health NHS Trust v Chhabra highlights the risks that working away from the office can pose. In this case, the Court of Appeal overturned the High Court’s decision to grant a doctor an injunction to restrain the Trust from proceeding with disciplinary proceedings for misconduct.
Dr Chhabra was employed as a consultant forensic psychiatrist by the Trust and worked at Broadmoor Hospital. A letter of complaint was sent to the Hospital and then forwarded to the Trust by another passenger on a crowded train on which Dr Chhabra was travelling. The passenger had been sitting opposite Dr Chhabra and alleged that patient confidentiality had been breached by Dr Chhabra who had been reading reports about a patient whose name was clearly visible to the passenger as well as the Section under which he had been detained. In addition to that complaint, a member of the secretarial staff was also anxious about confidentiality as she had been typing two tapes of Dr Chhabra’s that included sounds consistent with a railway journey. Concerns were also raised about Dr Chhabra making telephone calls about patients on her journey to work and taking notes from the Hospital to complete work at home. Dr Chhabra admitted to two breaches of patient confidentiality but denied discussing patient information to secretarial staff whilst in a public place.
An investigation report was prepared by an external case investigator who was also a consultant forensic psychiatrist. The report was passed on to the case manager, the Trust’s Medical Director who, having concluded that the matter was potentially gross misconduct, referred it on to a disciplinary panel, in line with the Trust’s policy. There were also allegations and issues relating to team work and communication which were to be dealt with under capability proceedings, but these proceedings were put on hold until the disciplinary hearing had been concluded. Dr Chhabra applied to the High Court for an injunction to prevent the disciplinary hearing about her conduct taking place.
There were a number of disputes about the way in which the process has been handled which Dr Chhabra alleged amounted to a breach of contract. The main argument was that, in making the decision to refer the matter to the disciplinary panel, the case manager had gone beyond the findings contained in the report. It was argued that the report itself did not conclude that the conduct was gross misconduct. The Court agreed and held that the finding of gross misconduct could not be made out on the basis of the investigation report and that in doing so and referring the matter to a disciplinary panel the Trust was in breach of contract. The Court went on to conclude that, due to the fact that this was not gross misconduct, and that Dr Chhabra had accepted the allegations, the matter should have instead been dealt with under the Trust’s Fair Blame policy, which the Trust had refused to do when requested by Dr Chhabra. The Court granted the injunction.
Court of Appeal
The Trust successfully appealed the decision arguing that, on the evidence, the case manager had not acted outside of the policy. In respect of the wording used in correspondence, the letter in question actually said "potentially very serious allegations of misconduct" and "considered as potential gross misconduct" and that these were not inconsistent with the findings of the report.
The Court of Appeal stated that "the issue is a narrow one: should the Court intervene, at this stage, to prevent the disciplinary procedure adopted by the Trust from operating? Was the case manager in breach of contract, on receipt of the investigating officer’s report, in deciding on 12 August 2011 to convene a disciplinary panel to consider allegations of breach of confidentiality by Dr Chhabra and to consider them as potential gross misconduct?"
The Court of Appeal took a wider view of the case manager’s discretion when considering the findings of the report and held that findings of fact were ultimately for the disciplinary panel to make. It was for the case manager to make a judgment whether the conduct reported was sufficiently serious to require a disciplinary panel hearing and it concluded that the required threshold had been crossed.
The decision by the Court of Appeal makes it clear that applications for an injunction will only succeed where there is evidence of a breach of contract. In Dr Chhabra’s case, the allegations that she had breached patient confidentiality in a public place were serious and constituted potential gross misconduct. On the evidence available, the case manager had been justified in considering the allegations a potentially serious offence and in referring the matter to a disciplinary panel.
What the decision also illustrates is the importance of employers putting in place clear policies and procedures providing practical guidance to employees on how to avoid breaches of confidentiality and the consequences of failing to do so. The policies should also set out clearly what employees are required to do if they are concerned about possible breaches of confidentiality by colleagues.
In relation to investigations generally, some useful guidance was given in the recent decision of the EAT in Stuart v London City Airport. Mr Stuart had an unblemished disciplinary record and worked as a Ground Services Agent, a position of trust. It was alleged that he removed goods from the duty free store without paying for them, an allegation which he denied. The EAT overturned the Employment Tribunal’s decision that the dismissal was fair and held that, where dishonest conduct is alleged, a higher level of investigation was required to show that a reasonable investigation had been carried out.