In Burn v Alder Hey Children’s NHS Foundation Trust, the Court of Appeal rejected an argument, brought by a consultant paediatric neurosurgeon under disciplinary investigation, that a contractual right to see “any correspondence relating to the case” imposed on her employer a general duty of disclosure extending to all documentation relating to the investigation.
The internal disciplinary case had been halted, and the Claimant had sought an injunction, preventing her employer from moving forward with the disciplinary process until the issue regarding the disclosure of documents had been resolved.
It is unusual to have a contractual right to view documentation, or to have a case concerned with this aspect. However, this case has hit the legal headlines for another reason rather than this discreet point.
This case has been noted for the ‘obiter comments’ that the Judges made – that is, the remarks or observations made in passing. The Judges stated that they had ‘strong provisional views’ that it could be possible for the implied duty of trust and confidence - that is, the duty that exists between an employer and an employee and regulates the employment relationship – to be implied into a disciplinary process.
The outcome would mean that it is an implied term and condition of employment that a disciplinary process is carried out fairly.
It is a legal principle that the implied duty of trust and confidence does not apply to the decision to dismiss. However, if the implied duty applies to the process that potentially leads to a dismissal, then we seem to be edging closer to a reanalysis of this point.
Any such development of the law could have far-reaching effects. Consider the possibility of an employee resigning during a disciplinary process because they felt that it was not being carried out ‘fairly.’
Think of a new basis for seeking injunctive relief to halt disciplinary proceedings whilst these issues are resolved. Or of another way for employees to raise issues and grievances which disrupt the disciplinary process.
Whilst there is no action for employers to take, they should be aware that comments made in passing during legal cases can sometimes take on a life of their own. If employees start to argue that there is an implied duty that you should act fairly during a disciplinary process, we would recommend that you speak to your legal advisory team.
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Associate Solicitor, ESP Law Ltd
Suzanne joined esphr in 2021, having qualified as a solicitor in 2005 and therefore bringing over 15 years' experience. She has worked in both the private and public organisations and has a breadth of experience across a number of different sectors including travel, retail, manufacturing, and education. She advises on all aspects of managing the employee journey, from the provision of day-to-day advisory support to complex grievances and disciplinaries. Suzanne also assists organisations embarking on longer-term projects such as TUPE transfers and change management programmes, including collective consultation. She has particular expertise in managing the defence of tribunal claims, including successfully defending applications to the EAT.