356: Do employers have to act fairly in disciplinary proceedings?

Employers should generally try to act fairly in all circumstances, but judges have now suggested employers could be obligated to do so when conducting disciplinary proceedings.

In Burn v Alder Hey Children’s NHS Foundation Trust, the Court of Appeal has considered an employer’s obligation to act fairly when conducting disciplinary proceedings. In their decision, the judges stated that they had ‘strong provisional views’ that there may be a separate implied contractual obligation on an employer to conduct disciplinary processes fairly, although they did not elaborate on its precise scope. Whilst the judges’ comments are non-binding, employees and their representatives may now seek to use this argument to interrupt disciplinary proceedings, for example, by resigning and claiming that the procedure was not fair, or by invoking the grievance process.

Ms Burn is a consultant paediatric neurosurgeon at Alder Hey Children’s Hospital. Disciplinary proceedings were commenced by the Trust in relation to a complaint relating to the death of a patient whilst under her care. The investigation was conducted in accordance with the NHS national framework for handling concerns about medical staff (Maintaining High Professional Standards (MHPS)). Under the MHPS, a doctor subject to an investigation is entitled to see ‘any correspondence relating to the case’.  During the investigatory stage, Ms Burn requested a number of documents which the Trust refused to provide to her, including correspondence with the patient’s parents. A stalemate arose, with Ms Burn refusing to attend an interview without having seen the documents, and the Trust indicating its intention to conclude the investigation without her input if she remained unwilling to be interviewed.

Ms Burn applied for an injunction to restrain the Trust from concluding its investigation without providing her with the documents she had asked for prior to her being interviewed. The High Court refused to grant an injunction, concluding that the Trust had gone to considerable efforts to accommodate Ms Burn’s requests as regards procedure and documents. There had been no breach of the implied duty of trust and confidence, nor of any express terms of the MHPS. Agreeing with the High Court’s reasoning, the Court of Appeal has now dismissed Ms Burn’s appeal. The duty to disclose ‘any correspondence relating to the case’ meant only disclosure of relevant correspondence generated by the investigation process, and not the additional documents requested by Ms Burn.

This case is very specific to its facts due to the procedural requirements of the NHS MHPS. However, it is of broader interest from an employment law point of view because of some general observations made by the Court of Appeal judges.