The Supreme Court this morning upheld a decision of the High Court to grant an injunction to Dr Chhabra to stop disciplinary proceedings that had been initiated against her by West London Mental Health NHS Trust. The Trust followed the NHS' contractual disciplinary and capability procedures in relation to a number of complaints against Dr Chhabra, one of which was that she had breached patient confidentiality by having patient notes clearly visible to others on a train and had dictated notes about that patient while on the train. Dr Chhabra admitted doing so but argued that she had not appreciated that she had breached patient confidentiality.
The Supreme Court found that there were a number of procedural irregularities in the way in which the Trust had managed the process, including the Trust's HR Director making significant amendments to the independent investigator's report into the allegations against Dr Chhabra, which cumulatively rendered disciplinary action against Dr Chhabra to be a breach of contract. The High Court was therefore right to intervene and grant an injunction.
The Supreme Court also found that on the facts the admitted breaches of patient confidentiality could amount to serious misconduct but not gross misconduct. The Supreme Court felt that the breaches of confidentiality were not deliberate. If Dr Chhabra had spoken to the media about a patient, that would have been deliberate and more serious and potentially amount to gross misconduct. This was important as the (mis)categorisation of Dr Chhabra's misconduct was in itself found to be a sufficient ground for an injunction.
As a rule, the Courts are reluctant to intervene to remedy minor irregularities in disciplinary proceedings. However, they will grant injunctive relief to stop disciplinary proceedings where irregularities amount to a breach of contract and those disciplinary proceedings are contractual. This case is a useful reminder that, if your disciplinary policy and procedure is contractual, injunctive relief could be sought to halt disciplinary action before a decision is made.
Finally, those of you who commute by public transport will be familiar with the sight of fellow commuters reading work papers, possibly containing sensitive confidential information. Breaches of confidence are taken extremely seriously by employers, particularly those who work with or in the public sector. While the Supreme Court's view is helpful guidance in relation to the categorisation of such an offence, it is important to remember that each case should be judged on its facts and legal advice sought.