Posted by Malcolm Gregory, Partner
HR and the disciplinary process – the requirement for impartiality
As legal advisers to HR professionals we often deal with HR managers who are keen to ‘get involved’ in the disciplinary process rather than stay impartial – this is an issue which is often discussed in HR forums. A case on this issue has recently been considered in the Supreme Court (itself an indication of confusion in the lower courts as to the ‘proper’ role of HR managers in the disciplinary process).
In Chhabra v West London Mental Health NHS Trust, Dr Chhabra, a consultant forensic psychiatrist, was alleged to have breached patient confidentiality in her role at Broadmoor Hospital in 2010. There were three allegations made: (i) that she made notes and discussed patient details on a train, (ii) that she dictated notes about patients on a train, and (iii) that she would call her secretary while on the train to discuss patient matters. As a result of these claims Dr Taylor, the case investigator, was tasked to look at these allegations and determine their severity. In her report she upheld the first two allegations.
The court found that there were three issues with the way the disciplinary process had been handled by the Trust. Firstly, Mr Wishart, the HR resources director, took part in the investigation by suggesting amendments to a draft of the report-that Dr Chhabra’s actions were ‘serious’ breaches of confidentiality. The court ruled that in doing so Mr Wishart went outside the remit of his role. Instead, a HR adviser should adopt and maintain a purely procedural role in a disciplinary process.
Secondly, the court considered HR’s involvement in this way undermined Dr Chhabra’s implied contractual right to a fair disciplinary process.
The final issue the court found was that the allegations about Dr Chhabra breaching patient confidentiality could not be regarded as gross misconduct as her actions did not fulfil the definition; that her actions make ‘any relationship between the Trust and the employee impossible.’
Implications for employers
The significance of this case for employers is that it makes clear that HR personnel must ensure that they only advise on procedural issues during the investigation and disciplinary process: if HR gets involved in either formulating the disciplinary allegations or advising on the sanction it is more likely that a claim will follow and that any dismissal will be unfair.
If you would like advice on this or any other employment law of HR matter please contact members of our Employment Team.
It pays to employ the right employment solicitor