If an investigation clears you, your employer cannot still hold a disciplinary hearing.
“Court of Appeal dismissed the Trust's appeal; the injunctionA court order requiring someone to do something or stop doing something. In an employment context, an injunction is occasionally sought to prevent an employer from dismissing someone or to enforce a r... stopping the capabilityOne of the potentially fair reasons an employer can use to dismiss someone, covering situations where you are unable to do your job to the required standard, including through ill health. A fair capab... hearing stood.”
If your employer's investigation clears you of serious wrongdoing, they cannot still push ahead with a formal hearing on the strength of the same findings.
- Get the investigation's full findings in writing before you agree to a hearing date.
- If a hearing is scheduled despite findings that do not support it, object in writing before the hearing happens, not after.
- Get advice early. A specialist can assess whether the threshold in your contract or procedure has actually been met.
Suspension response letter generator
Generate a formal letter responding to your suspension. Five letter types cover common situations, with the first one free.
Open tool →The situation
A consultant forensic psychiatrist employed by an NHS Trust granted a patient unescorted leave without assessing him in person, and the patient absconded and killed a stranger the next day. An investigating panel later found her decision inappropriate, but concluded it fell short of serious professional incompetence, and found nothing to suggest she was likely to put patients or the public at risk in future. Despite that finding, the Trust pressed ahead with a capability hearing under Part IV of the NHS's Maintaining High Professional Standards framework. She obtained an injunction stopping the hearing, and the Trust appealed to the Court of Appeal.
What the court found
The Court of Appeal held that a capability hearing can only go ahead where the practitioner's capability, meaning their knowledge, ability, or consistently poor performance, is genuinely in question. The investigating panel's own findings ruled that out here. It described her as an obviously conscientious and competent consultant psychiatrist and found no cause for concern that she would put anyone at risk in future. Her competence, the court said, had been vindicated rather than called into question. Because that threshold was never crossed, going ahead with a capability hearing would breach the Trust's own contractual procedure.
The court confirmed that a threatened breach of contractWhen one party to an employment contract fails to comply with one of its terms without a lawful reason. Your employer breaching a significant term of your contract can entitle you to resign and claim ... of this kind can be restrained by injunction. The appeal was dismissed and the injunction stood.
Mezey v South West London and St George's Mental Health NHS Trust. [2010] EWCA Civ 293. Court of Appeal. 30 March 2010.