Disciplinary Procedures – Portsmouth Hospitals NHS Trust v Corbin

The importance of approaching disciplinary matters with an open mind is emphasised in the case of Portsmouth Hospitals NHS Trust v Corbin.

Ms Corbin was a radiographer with more than ten years’ service. However, she had received a warning under the disciplinary procedure, and a second offence had led to that warning being extended. In the course of defending herself against the second allegation she put together a ‘defence pack’, which she compiled at home. In doing so, she used information obtained from patient records – which should not have left the hospital – and which she had only partially redacted to conceal the identity of patients. That led to a further disciplinary process, at the end of which she was dismissed.

In the subsequent unfair dismissal claim, the employer argued that while the breach of patient confidentiality had not been malicious, ‘a breach was a breach’ and amounted to gross misconduct.

The tribunal found that the dismissal was unfair. The investigation into Ms Corbin’s conduct had highlighted an ambiguity in the application of the rules on patient confidentiality to the position of an employee facing a disciplinary hearing. The tribunal found it ‘incomprehensible’ that the manager conducting the hearing had ignored that fact. Nor had the manager recognised that the rules envisaged that there could be degrees of seriousness in their breach. He had simply asked whether there had been any breach of confidentiality and assumed that if there was, then that would inevitably be gross misconduct warranting dismissal. To adopt such a closed mindset – disregarding the possibility of a lesser sanction – was unfair.

The EAT upheld that finding. However, the EAT also allowed an appeal against the tribunal’s finding of wrongful dismissal. Wrongful dismissal is a contractual claim for notice pay and the issue is not whether the employer has acted reasonably, but whether the employee was guilty of gross misconduct entitling the employer to dismiss without notice. The EAT held that the tribunal had not made sufficient findings on this point. The fact that the employer had behaved unreasonably in assuming that dismissal was the only possible response to the employee’s conduct did not mean that she was not guilty of gross misconduct. The EAT also allowed an appeal to the effect that the tribunal had not given proper consideration to whether the employee’s compensation should be reduced to reflect the extent to which her conduct contributed to her dismissal. The matter was sent back to the same tribunal to reconsider these matters.