The Appellant in this case was a doctor who was appealing against a decision that the respondent, the NHS Trust, had been entitled to arrange a conduct panel in disciplinary procedures against her.

It was alleged that she breached patient confidentiality by discussing patients and reading medical reports on a train. In line with the trust’s disciplinary policy, which implemented a national framework, the case manager appointed a case investigator.

After the Appellant expressed concerns regarding the involvement of the trust’s associate HR director, the trust gave an undertaking that he would not be involved in the investigation. However, the case investigator communicated with the HR director and accepted his proposals to her report.

On receipt of this report, the case manager proposed to put the charges concerning breach of confidentiality and a further allegation which had not expressly been in the investigators terms of reference to a conduct panel. The case manager believed that the charges constituted gross misconduct.

The Appeal was allowed. The primary aim of the procedures implemented by the national framework was to have someone investigate the complaints identified by the case manager and to discover if there was a prima facie case of capability issues or misconduct. If the case investigator were to conclude that there was no prima facie case, there would normally be no basis for the case manager to appoint a conduct panel.

It was held that there had been a number of irregularities in the proceeding which resulted in the convening of a conduct panel and rendered it unlawful as a material breach of the Appellants contract of employment. The fact finding and evidence recorded in the report has not been capable of supporting a charge of gross misconduct.

There was no material in the report to support the biew that the breaches of confidentiality reordered were wilful in that they were deliberate breaches of that duty. The case manager, in reaching his view that C’s behaviour could amount to gross misconduct, he had founded on words added to the trust’s policy after the relevant incidents. 62 The amendment of the report by a member of the trust's management was not within the agreed procedure: the report had to be the product of the investigator.

Further, the disregard for the undertaking amounted to a breach of the obligation of good faith. The case manager had not reassessed his decision that the matters were potential gross misconduct after receiving the second report. He had been obliged to do so under the trust's policy; an objective observer would not consider it reasonable to fail to do so. http://bit.ly/19gOFUn