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Is there a right to a fair disciplinary process?

Dr Burn is a consultant paediatric neurosurgeon employed by Alder Hey, a Children’s hospital. She was suspended in early 2020 pending an investigation into tragic events in 2017 when a patient passed away following surgery. Dr Burn was restricted from all clinical duties pending its outcome, which is yet to have been received by the Claimant almost 2 years later. The investigation was suspended after the Claimant commencing proceedings against Alder Hey seeking an injunction to stop the investigation from concluding until she was given the opportunity to see relevant documents to the investigation. The relevant documents were witness statements and correspondence with the patient’s parents. She also raised issues with not being interviewed in the initial stages of the investigation.

The basis of her claim was under the terms of the professional standards of her profession, and a duty of trust and confidence. The framework of her professional standards allowed her the right to see any correspondence. The documents she sought were witness statements and correspondence between Alder Hey and the patient’s parents. At the High Court, her arguments were rejected on the basis that correspondence meant written communications between parties. Witness statements were therefore excluded, and she was not a party to the letters to the patient’s parents. Nevertheless, she was entitled to appeal to the Court of Appeal.

The Court of Appeal stated that correspondence relating to the case, meant correspondence generated by the investigation itself, and not necessarily the subject of the investigation. The appeal was therefore unsuccessful. However,  comments from the Judges stated that the obligation to give the doctor the opportunity to put their version of events ‘necessarily implies that they must be shown any documents that they fairly need in order to be able to do so’, and that a duty of procedural fairness arises from the nature of the disciplinary process, not trust and confidence.

As such, we may see this develop further in the coming years to the extent that contracts of employment have an implied term for procedural fairness in disciplinary matters. By failing to follow a fair process, employers may breach the contract.

What does this mean for your and your business, and what should you be doing now?

The basic underlying principle when dismissing on the basis of conduct are that the employer’s actions must be reasonable. Failing to have a fair disciplinary process seriously undermines this point, and many employers have lost unfair dismissal cases in what appeared to be cases of obvious guilt as a result. Whilst the judgment here is merely an opinion, it does indicate some judicial support for an implied term which would give far more credence to any breach of contract claim, and particularly to those seeking to bring constructive unfair dismissal, where they have been subjected to disciplinary action.

Employers should keep an eye on future developments here, but be aware that the most risk-averse process is to allow the subject of disciplinary action to put forward their own version of events, and see relevant documents prior to making any decision on the subject.

Recommended reading

A link to the judgment from the Court of Appeal can be found here.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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