Disclosure and fairness in disciplinary investigations

The Court of Appeal has made an important ruling on the documents that need to be disclosed to an NHS clinician when they are being investigated in conduct or capability proceedings. The decision interprets the relevant requirements in Maintaining High Professional Standards (MHPS), which provides a framework for these proceedings across the NHS, as well as offering more general guidance as to the fairness of an employer’s procedures which will be of wider relevance.

The dispute arose in the course of an investigation conducted by an NHS Trust into a clinical decision made by a consultant paediatric neurosurgeon. Under MHPS, the Trust was obliged to give her “the opportunity to see any correspondence relating to the case”. The Court of Appeal decided that ‘correspondence’ had its natural meaning, being communications sent by one person to another, and in this context also only covered correspondence generated by the investigatory process. In finding that there was no general duty of disclosure it dismissed the doctor’s argument that the NHS Trust’s obligations extended to providing all correspondence and other documents that related to the subject matter of the investigation.

However, as the Court of Appeal went on to explain, that was not the end of the matter. It said that it was implicit in other requirements in MHPS – for example the requirement that the practitioner must be given the opportunity to put their version of events - that they must also be shown any additional documents they fairly need in order to be able to do so. The Court of Appeal said that an obvious example is that a doctor would not normally have a fair opportunity to give their version of events relating to the treatment of a patient without sight of the clinical notes.

In comments that have wider relevance, both substantive judgments conclude by observing that these disclosure requirements should be seen in the wider context of the fairness of an investigation as a whole. They raise the possibility that an obligation to conduct an investigation fairly might be derived not simply by interpreting the express requirements of a particular disciplinary procedure, or through the implied duty of trust and confidence, but from implying a term to that effect into the employment contract. In doing so they left “…this important issue of principle open for a future case...”

As the law stands, employers generally have no specific obligation to act fairly in this context as a matter of contract, though it might arise in some cases as a component of the implied duty to maintain trust and confidence. That said, employers who wish to defend any subsequent claim for unfair dismissal, need to be able to demonstrate that any disciplinary or capability process they followed has been procedurally as well as substantively fair.