What now after Chhabra? by Katherine Apps
Just before Christmas, the Supreme Court handed down the long awaited judgment in Chhabra v West London Mental Health Trust  UKSC 80. The judgment is short but may affect the way in which first instance courts may approach injunction applications in the future.
Medical healthcare lawyers are familiar with the structure of Maintaining Professional Standards in the Modern NHS (MHPS) which creates a potentially important distinction between conduct issues and capability issues. MHPS created a single process for dealing with concerns about professional capability, and the involvement of the National Clinical Assessment Authority (“NCAA”). For conduct issues, MHPS contains a self-contained contractual disciplinary procedure for doctors and dentists (replacing HC(90)(9)). Dr Chhabra faced both.
Dr Chhabra is a Consultant Forensic Psychiatrist at the Trust. A civil servant heard Dr Chhabra dictating patient notes on a train and reported her to the Trust.
The Trust commenced a conduct procedure to investigate the alleged breach of confidentiality matters and appointed a psychiatrist from another trust as investigator. The investigation report found that Dr Chhabra had breached patient confidentiality by dictating notes on the train, but found that there was a conflict of evidence between Dr Chhabra and her secretary as to whether she discussed patient details by telephone on the train. The investigator expressly made “no finding” on this charge.
Following this investigation the Trust wrote to Dr Chhabra informing Dr Chhabra that it would convene a disciplinary panel to consider whether she had committed gross misconduct not only relating to the matters which the investigation report had found there to be a prima facie case, but also:
The Trust also decided to refer an allegation regarding Dr Chhabra’s team working as a capability issue to NCAA but refused to stay the disciplinary proceedings while the capabilityprocess was being carried out.
Dr Chhabra sought an order restraining the Trust from proceeding with the conduct hearing. Incidentally, Dr Chhabra had expressed contrition for her actions from the outset. Under the Trust’s procedure it would have been possible to determine the matter informally and to suggest (re)training (the, so called “fair blame” procedure).
At first instance, Dr Chhabra was granted an injunction restraining that process. HHJ Mc Mullen QC sitting as a Deputy High Court Judge held that the charges were insufficiently serious to amount to a finding of gross misconduct. The Trust had failed to reassess the gravity of the charges after receiving the investigator’s report on the second charges (for which she found no case to answer).
The Court of Appeal allowed the Trust’s appeal. The Court of Appeal held that the Trust had a discretion whether to combine capability and conduct issues under MHPS or whether to proceed with a conduct procedure independently. The Court of Appeal further held that, under the contractual procedure, the case manager could consider matters which went beyond the investigatory report.
The Supreme Court allowed Dr Chhabra’s appeal.
Having substantially agreed with the Court of Appeal thus far, the Supreme Court found that pursuing the disciplinary procedure was nevertheless a breach of Dr Chhabra’s contract because:
Lord Hodge held that it was “the cumulative effect” of those irregularities which would render the continuance of the disciplinary process to be unlawful (para 39). Breaches 2 and 4 on their own could not have sufficed, but taken together with 1 and 3 they are sufficient. The first breach could have sufficed on its own.
Going forwards, Chhabra may well be cited for the formulation of gross misconduct as requiring a “wilful” breach in the sense of a “deliberate” breach of duty. This formulation is likely to be helpful for employees considering not only injunctive remedies, but also, potentially if they have already been dismissed, in claiming wrongful dismissal or unfair dismissal. Often employers focus investigatory and disciplinary processes on establishing that the employee “did” the act of misconduct in question, and whether they consider there is a risk that the employee will “do it again.” Lord Hodge’s formulation in Chhabra suggests that, where an employer is considering dismissal for gross misconduct, those conducting the disciplinary must go further and consider the employee’s mental processes; whether they intended to commit the breach of duty.
However this formulation is not entirely consistent with some earlier authorities, (e.g Comerford v Swel Foods Ltd  IRLR 17) not cited by Lord Hodge in which it has been held that “serious negligence,” and not only deliberate or intended breaches, could justify a summary dismissal.
Secondly, injunctions to restrain disciplinary processes are more common in the medical professions than many other employment contexts. Often the explanation given for this has been that medical professionals have the benefit of an unusually specific disciplinary process, which is expressly stated to have contractual effect.(1)
Lord Hodge’s approach to the alleged breaches in the Chhabra case, however, are not fettered by reference to express contractual terms. He held that it was not necessary to consider whether the all of the clauses referred to were apt for incorporation (para 41). Instead, he adopted cumulative and fairness based approach, utilising the implied term of mutual trust and confidence. In particular, it was not necessary to decide whether the Trust’s assurance that a particular HR manager would not be involved in the disciplinary process had the status of a contractual promise. The Trust would be in breach of contract to Dr Chhabra by reneging on this assurance, by permitting that manager to make substantial substantive comments on the investigation report.
Chhabra may, therefore, slightly open the door to injunction applications from employees who cannot so clearly point to one or two clear express contractual breaches, but where there is an accumulating trend of unfair conduct from an employer which taints the process. Arguments based on transparency, legitimate expectation and natural justice may ultimately be as beneficial to include in an application as specific breaches of procedure. (2)
On a practical level, the judgment in Chhabra provides a useful reference source for those advising HR managers within the NHS as to how to manage (and when not to manage) the various stages of the process.
Case manager and investigator roles: The Supreme Court held that the roles of the investigator and the case manager are importantly different. The investigator will interview potential witnesses, but their accounts will not be tested by the employee or their representatives. The investigator may be able to resolve contested issues of fact, but where he or she cannot she can only record the conflicting testimony. Lord Hodge (giving the judgment of the Court) set out the following principles:
Insulating the investigator from HR influence: The Supreme Court found that the involvement of HR in commenting on the investigation report was a clear and serious breach of Dr Chhabra’s contract. So, where is the line to be drawn between HR instructing an independent investigator and illegitimate interference in that process?
Lord Hodge envisaged that it could be legitimate for an HR department to comment on an investigatory report to ensure that all matters have been dealt with by the investigator and to seek to ensure that the resulting report is clear. However, the HR department should not have commented substantively on the allegations (in Dr Chhabra’s case the HR manager had suggested that the investigator add the word ” serious” to the misconduct on which he found a prima facie case to answer).
In practice, HR managers are often under intense pressure internally. It is not difficult to see the temptation to attempt to manage the investigatory process as it proceeds. Once an investigator has reported, their conclusions have considerable weight and are difficult to depart from because the case manager may only depart from those conclusions if they were perverse. However, if the HR manager oversteps the mark and “manages” the process too intensely along the way, this can risk a court granting an injunction. At the start of an investigation, it may be worth discussing this tension with the HR managers, and underlining:
So what does Chhabra change? This is not a revolutionary case. However, its impact is likely to be more subtle and cumulative, paving the way for employees to secure injunctions in cases where it is difficult to isolate clear contractual breaches and where the procedure is lacking transparency and rigour. It forms part of the recent trend of cases, reinforcing the court’s interim injunctive powers.
(1) Also, for doctors still in training, the NHS, is in effect a monopoly employer.
(2) See further the article by Daniel Tatton Brown in this bulletin titled What is so Special about Doctors?