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Advice For Employers & HR Professionals

One to watch: A new implied term of procedural fairness during disciplinary proceedings?

Burn v Alder Hey Children’s’ NHS Hospital (Court of Appeal)

 Ms Burn was a consultant paediatric neurosurgeon under disciplinary investigation at Alder Hey Children’s’ NHS Hospital. The subject of the appeal was Ms Burn’s argument that a contractual right to see “any correspondence relating to the case” meant that Alder Hey was obliged to disclose to her all documentation relating to the investigation, which was in the possession of the investigator, not just correspondence generated because of the investigation.

Ms Burn’s argument was rejected by the Court of Appeal; it didn’t agree with her that there was an express right to see all documents held by the investigator (only correspondence arising out of the investigation itself).

However, most noteworthy, were the obiter comments made by Singh LJ and Underhill LJ, namely that there may be an implied contractual obligation to conduct a disciplinary process fairly and that such an implied term arises separately to the implied term of trust and confidence.

In the context of this case, the Court accepted that a doctor should have the right to see relevant documents which are necessary to provide a fair opportunity for them to construct their version of events. It follows that an implied term of procedural fairness might be relied upon to require the disclosure of such documents.

The judges’ comments, whilst only obiter and therefore not binding on any court or tribunal, paves the way for employees to argue that there is an implied duty for employers to act fairly during disciplinary processes. Whether there is such an implied term and what further protection it gives to employees over and above the implied duty of trust and confidence (if any) is likely to be the subject of analysis in cases to come. It’s certainly one to watch!

Whilst the upshot of any future decisions about an implied term of procedural fairness may be far-reaching, it goes without saying that you should always strive to conduct disciplinary processes fairly to avoid Employment Tribunal claims, including for unfair dismissal and discrimination. If an employee complains that you are not conducting a disciplinary process fairly and / or you are in breach of an implied term of procedural fairness, we suggest talking to us about it first before taking any further action.

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