Dangers of influencing disciplinary decisions
The following ruling of the Supreme Court illustrates the dangers when non-decision makers interfere in disciplinary proceedings.
The Claimant, a hospital consultant, was accused of breaching patient confidentiality by, among other things, reading patients’ medical records and dictating patient reports while travelling on a train.
An investigator was appointed to decide whether there was a case to go to a disciplinary hearing. The investigator sent a draft report to the head of HR expressing her view that the Claimant had admitted a breach of confidentiality and that it was unlikely to be repeated. However, the head of HR 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 allegation as gross misconduct.
The Claimant challenged the process and succeeded in obtaining an injunction to halt the disciplinary proceedings. The case made its way to the Supreme Court which ruled that the head of HR had gone beyond advising on questions of procedure or helping ensure 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 permissible.
This was a case involving NHS conduct procedures. Many of the procedural complexities in the case do not apply outside the NHS; however, the message that decision makers should decide and advisers should restrict themselves to advising is one that should apply to all employers.
If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to firstname.lastname@example.org
Warning – this bulletin is for information only and does not claim to be comprehensive or to provide legal or other advice. You should take legal advice before taking or refraining to take any action. No liability is accepted for loss that may arise from placing reliance on this bulletin.