When considering whether an employee had the right to see certain documents as part of a disciplinary hearing, the Court of Appeal held in Burn v Alder Hey Children’s NHS Foundation Trust that a duty of procedural fairness in disciplinary proceedings could be implied into employment contracts. As such, the duty arose from the nature of the disciplinary process itself, rather than the implied term of trust and confidence.


Basic facts

Dr Burn, a consultant paediatric neurosurgeon, had been looking after a child, referred to as A. The child, however, died a few days after two operations were performed on her brain. As the consultant on call, Dr Burn was in telephone contact with the surgeon who carried out the operations, but she did not come into the hospital to examine A.

An investigation was then carried out under the trust’s conduct policy. Paragraph 1.16 states that the “practitioner must be given the opportunity to see any correspondence relating to the case”. Having been shown a list of documents that were available to the investigator, Ms Burn asked for copies. Although the trust agreed to release them, three witnesses refused permission to disclose their statements and A’s parents refused to release two letters to them from the trust.

Ms Burn sought an injunction requiring the trust to disclose the documents and restraining them from concluding the investigation until she had seen them all.


Decision of High Court

Rejecting the application, the High Court judge held that although the two letters to A’s parents fell within the natural meaning of the term “correspondence”, it could not be stretched to include documents such as witness statements.

As for the phrase “relating to the case”, this required a judgment as to whether the letters were relevant in the sense of having “a causative connection” to the investigation. That judgment was for the case investigator to make and could only be reviewed by the court on the ground of rationality. The investigator in this case had given evidence that the letters were not relevant, and the court saw no need to question her judgment.

Ms Burn appealed, arguing that the court should have interpreted paragraph 1.16 “purposively” to include anything connected with the subject-matter of the investigation. In addition, she argued that the implied term of trust and confidence meant that she had the right to see the documents that had been withheld.


Court of Appeal decision

The Court of Appeal agreed with the trust that the natural meaning of the term “correspondence” referred only to “communications sent by one person to another” and not to documentation more generally. As for the phrase “relating to the case”, this meant correspondence that was relevant to the issues under investigation. In other words, it did not create an obligation to disclose correspondence (let alone other documents) just because they might be connected to the investigation in some way.

The investigator was not therefore under an obligation under the policy to provide Ms Burn with copies of all the documents they had gathered for the purpose of the investigation, or which had been generated in the course of carrying it out. Otherwise, a process that had been explicitly left to the discretion of the investigator would get bogged down in endless formalities.

However, the court then went on to reflect, albeit in terms that are not legally binding (known as obiter dicta), that a duty of procedural fairness can be implied into the disciplinary clauses of employment contracts. So rather than arising from the implied term of trust and confidence as Ms Burn had argued, the duty would arise from the nature of the disciplinary process itself. This point, however, was something for future courts to determine.

The appeal was dismissed.



Most of this decision is about the wording of a particular policy and need not trouble the reader much. However, of more interest is the discussion about a contractual duty of procedural fairness in the disciplinary context.

For decades, courts have resisted any attempt to impose on employers' contractual obligations to act either fairly or reasonably. Such obligations might seem uncontentious to modern eyes, but judicial resistance has its roots in the traditional “master and servant” view of the employment relationship. When that is understood, the charge of judges being “activist lawyers” is seen in a new, and wry, light. It is though, undoubtedly, a useful decision to have in your pocket as sometimes employers fail to disclose information helpful to the employee in defending disciplinary charges. Although the principle remains obiter, the Court of Appeal has opened the door to it being put front and centre in other cases.