west-london_largeA couple of cases this month illustrate the crucial importance of paying more than lip service to fair procedure.

West London Mental Health v Chhabra illustrates the dangers of allowing non decision makers to meddle in disciplinary proceedings. In this case, concerns were raised about a consultant psychiatrist, including about possible breaches of confidentiality after she was observed working on patient related matters during train journeys. Advice was taken from HR and an investigator was appointed. The investigator came to the view that she had admitted a breach of confidentiality and that it was unlikely to be repeated. The investigator sent a draft report to the head of HR, who suggested a number of amendments which made the case look significantly more damning, many of which were adopted. Based on the “sexed-up” report, a decision was made to treat the confidentiality allegations as gross misconduct. Other issues relating to working relationships were characterised as issues of capability and handled under a separate procedure.

Dr Chhabra challenged the process and succeeded in obtaining an injunction to halt the disciplinary proceedings. The case made its way to the Supreme Court which found that the head of HR had gone beyond helping to make sure that the investigation report had covered everything necessary and was expressed clearly, which would have been permissible, and had influenced the conclusions reached – which was not. Dr Chhabra’s implied contractual right to a fair process had been breached.

The Supreme Court judgment identified four specific irregularities:

  • – The findings of fact and evidence, taken at their highest, were insufficient to support a charge of gross misconduct.
  • – There was too much reliance on a list of typical examples of what the Trust might regard as constituting gross misconduct rather dealing with the concept of misconduct.
  • – The Trust breached its contract with Dr Chhabra when it allowed an HR manager to make extensive amendments to the case investigator’s report and in breach of an undertaking that the HR manager would play no further part in the investigatory process.
  • – There was a failure to re-assess the decision to dismiss when the factual grounds for the making the decision were altered.

The result was that the Trust was prevented from dealing with certain confidentiality concerns as matters of gross misconduct and in respect of the remainder it could not do unless it conducted an entirely new disciplinary process from the outset.

It is of course extraordinary that objections to a disciplinary procedure should have made it all the way to the Supreme Court, although perhaps less so when one considers the labyrinthine processes and procedures that apply in the NHS. However the headline message applies to all employers, no matter what the size of the organisation. It is vitally important that those who are appointed to carry out investigations do so as impartially and objectively as possible and avoid succumbing to outside influences. At the other end of the spectrum this can often be particularly difficult for small businesses in which, for example, one director appointed to investigate a complaint might be heavily influenced by perhaps the only other director, as an almost inevitable consequence of dealing with the issues facing the business on a day to day basis. In such circumstances it is well worth considering the appointment of an external investigator so that the process can be shown to have been kept at arm’s length.

Meanwhile Birmingham City Council & Another v Emery is a salutary lesson for school governors. Under regulations made under the Education Act 2002, they have the power to make appointments, but the teachers they appoint are then employed by the local authority. Similarly, when a teacher’s employment is to be terminated it is the governing body that makes the decision that he or she should no longer work at the school. However, it is not enough for them to arrive at a decision; they are not the employer, and only the local authority can dismiss the teacher – which it must do, under the regulations, within 14 days from receiving written notice of the governors’ decision.

In Emery, the governing body decided at a hearing on 28 February to dismiss a teacher for incapability after long periods of sickness. At the hearing a technical adviser from the council told her that her dismissal date was 28 February but that she was entitled to contractual notice pay too. The next day Birmingham City Council wrote to her to confirm the decision; she got the letter on 1 March. Under her contract she was entitled to two months’ notice ending on 30 April, or three months ending on 31 August. The local authority letter thus failed to give her the full two months’ notice to which she was entitled, by just one day. The Employment Appeal Tribunal confirmed the decision of an Employment Tribunal that her dismissal did not take place until 1 March – it could not be effective until implemented by the council – and so she was entitled to an additional 3 months’ notice pay.

As succinctly stated in the summary contained within the judgment: “Whether decision by governors of a community school to dismiss a teacher had the effect of giving her notice to terminate her contract of employment. No.”. The reasoning is simple; while the governors can make decisions about the appointment and termination of staff, it the local authority which is throughout the employer.