Supreme Court prevents employer from conducting disciplinary hearing

David McRae
20th Jan 2014

The Supreme Court has granted an injunction to prevent an NHS trust from holding a disciplinary hearing with one if its employees.


The employee, a Consultant Forensic Psychiatrist, was alleged to have committed gross misconduct by breaching client confidentiality when dictating notes and discussing a client with a fellow doctor on a train.


The court took the view that there had been a number of procedural irregularities that justified the granting of an injunction. It ruled that the evidence against the employee, when taken at its highest, could not support an allegation of gross misconduct. This basis alone would have been sufficient for the granting of an injunction but there were further irregularities that proved persuasive.


The injunction could also have been justified due to the employer’s failure to follow its own investigation procedure by allowing a member of management to amend the investigation report against the employee. In doing so the employer had breached its contract with the employee by disregarding the procedure for conducting investigations and preparation of investigation reports.


As a result, the court prohibited the trust from pursuing its concerns in relation to confidentiality until such time as they started a fresh investigation in accordance with their policy.


The court made it clear that as a general rule it is not appropriate for the courts to intervene to remedy minor irregularities in the course of a disciplinary procedure between an employer and an employee, due to the unnecessary delay and expense this would cause. Due to the more serious nature of the irregularities in this case it was deemed appropriate to intervene.


It is certainly a most unusual step for a court to prevent an employer from conducting an internal hearing with an employee, but the contractual nature of the disciplinary procedure in this case was the essential ingredient that gave the courts jurisdiction over this matter. The case reminds us that in some circumstances, it is possible for employees to use the legal system to prevent their employer from taking some sort of action against them in the first place, rather than waiting until the action has been taken and seeking redress through the legal system afterwards.

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