High Court grants injunction lifting employer’s suspension

It is established law that a decision to suspend an employee must be reasonable. There is a chain of case law, largely in the public sector, where the courts have addressed questions around suspension and other elements of disciplinary process in the context of applications for injunctive relief.

The recent High Court decision in Harrison v Barking, Havering and Redbridge University Hospitals NHS Trust serves as a useful reminder that employers, particularly in industries (such as financial services) where suspension or particular disciplinary action has a significant impact on the individual’s reputation, should be mindful of the legal issues in relation to suspension and take care that suspension decisions are made properly. In particular:

• There must be reasonable and proper grounds to suspend. Such decisions should be made by reference to all the relevant circumstances (including balancing the potential impact of suspension on the employee’s mental health and reputation against any potential risks faced by the employer of not suspending).
• The decision-making process should be clear and well-documented.
• Having decided to suspend, employers should also seek to maintain lines of communication with the individual.
• Our experience is that employers do not suspend employees lightly and do give careful consideration to the risks to their business as well as the implications for the individual. However, having done so, employers should make sure that their analysis is documented and clearly communicated.
• Supreme Court authority establishes that courts should not seek to micro-manage internal disciplinary processes.

Facts

Harrison was a solicitor employed by the NHS Trust as Deputy Head of Legal Services. Her role involved inquest work, handling claims, advisory work and legal teaching. She was suspended due to concerns about her handling of a clinical negligence claim, without being given details of the allegations. She was subsequently diagnosed with stress. She was then asked to return on restricted duties, and when she refused, she was suspended for refusing to obey an instruction. Harrison sought an injunction arguing that she was reinstated with permission to undertake all her normal duties. She argued that the Trust had breached their implied duty of trust and confidence, and that her health suffered as a result.

Her application for an injunction was granted. Following the principles set out in American Cyanamid, it was held to be strongly arguable that the way she was treated amounted to a breach of the implied duty of trust and confidence. There was arguably no reasonable and proper cause for the suspensions: there was no evidence that resuming most of her normal duties would harm the NHS Trust (she voluntarily agreed not to undertake clinical negligence claims). On the other hand, there was evidence that suspending her from work had damaged her health. The balance of convenience therefore favoured granting the injunction.

Insights

It is striking that the Trust had agreed that she could return to limited duties under supervision but the High Court was prepared to grant the injunction on the specific terms requested by the Claimant which permitted her to work autonomously. The Trust’s failures to communicate with her or to progress the investigation during her absence and failure to explain why its concerns were relevant to the other elements of her role were also undoubtedly relevant. As was the fact that Ms Harrison’s job description referred to her working “autonomously” and that she had strong medical evidence that the suspension had had a significant impact on her mental health.

The case seems to go further than previous cases in granting an injunction to lift suspension on the basis of the employer’s breach of the implied duty of trust and confidence. As a result of this decision, we would not be surprised to see more interim injunction applications in the private sector where the individual considers that the risk of suspension is greater than the risk of significant costs awards and choosing to air the reasons for the suspension in public.

It will be harder to challenge a suspension where the suspension relates to an employee’s core activity and the employer’s concerns – a court may find it difficult at an interim stage to challenge an employer’s assessment of risks to its business which cannot be avoided by a reduction of duties. The Trust in Harrison belatedly ran the argument that the suspension related to core activities; their case was hindered by their failure to raise this point at an early stage.

Other decisions on injuncting employers in the context of disciplinary matters

In contrast, in the case of Blackstock v University College London, the claimant’s application for an injunction was refused. The claimant argued that the university had breached its duty of trust and confidence by suspending him, and he sought an injunction to lift the suspension. In that case, the claimant had been suspended for bullying and his intimidating behaviour had caused significant stress to other staff. Therefore, on balance, the risk of harm to the university was more than the risk of harm to the claimant and the application was refused.

In the case of Ardron v Sussex Partnership NHS Trust, the High Court discontinued an interim injunction which prevented the employer from continuing disciplinary proceedings. The case involved a consultant psychiatrist who was accused of gross misconduct for various failures relating to a prisoner who committed suicide. The claimant was initially granted a temporary interim injunction preventing the Trust from bringing disciplinary proceedings on the basis that it did not have sufficient grounds for a charge of gross misconduct and the proceedings were in breach of her contract. However, the High Court had to determine whether the injunction should be made permanent. It held that the Trust’s findings amounted to a sufficient prima facie case of gross misconduct (whether taken individually or cumulatively) and it was not a breach of contract for the Trust to continue with disciplinary proceedings. The injunction could not be maintained on reasonable and proper grounds.

However, in Chhabra v West London Mental Health NHS Trust, the Supreme Court upheld an injunction preventing the employer from proceeding with a disciplinary process on the basis of potential gross misconduct. The Supreme Court found that the findings were not capable of supporting a charge of gross misconduct. The conduct complained of, namely breaches of patient confidentiality, was not sufficiently serious to amount to gross misconduct as there was no evidence that they were wilful or deliberate. There were also other procedural irregularities in the process, for example an HR adviser materially altered the investigator’s conclusions. Approving an earlier decision, the Supreme Court said that “it is not appropriate for the courts to intervene to remedy minor irregularities in the course of disciplinary proceedings between employer and employee – its role is not the “micro-management” of such proceedings”.