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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Harrison v Barking, Havering And Redbridge University Hospitals NHS Trust [2019] EWHC 3507 (QB) (19 December 2019) URL: https://www.bailii.org/ew/cases/EWHC/QB/2019/3507.html Cite as: [2020] IRLR 62, [2019] EWHC 3507 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
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Caroline ![]() | Claimant |
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- and |
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Defendant |
____________________
Hannah Slarks (instructed by Bevan Brittan LLP) for the Defendant
Hearing date: 9 December 2019
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Crown Copyright ©
Margaret Obi:
Introduction
Background
Initial Suspension
Return to Work
Second Suspension
Lifting of the Second Suspension
Impact of the Suspensions and Restricted Duties
Impact on the Claimant
"In recent months I have suffered the indignity and trauma of being suspended from work on grounds that I consider to be unwholly justified. I leave the legal arguments to my lawyers, but I consider that my suspensions, and in particular my most recent suspension, to amount to a breach of my contract of employment. I have found being removed from my place of work and being prevented from performing my professional duties traumatic and stressful. It has had a serious adverse effect on my mental health and well-being."
"As is clear from the evidence referred to in my first statement, my health has unfortunately suffered as a result of my suspension and my being prevented from performing the job I love. I have found the fact that I have been suspended (for the first time in my professional life) humiliating and distressing. I have become tearful, I am not sleeping or eating properly, and I am having panic attacks when I think about not being able to return to the work I love
I am proud of the fact that I am a solicitor and I am proud of the work that I have done in the NHS and for the Defendant in particular. I enjoy work and my interaction with my colleagues. I find it upsetting that questions have been raised about my professional competence. It is implicit in my being suspended from inquest work and giving medico-legal advice that I cannot be trusted to do either of these things. That makes me feel distraught. I consider it deeply unfair and wrong. I have no doubt that this fact contributes to my ill health."
Impact on the Defendant
" an obviously foreseeable chance that she could handle a case in this way again. The potential risks arising from this are exacerbated by the fact that the Claimant has so far refused to acknowledge any of our concerns."
Relevant Contractual Terms and Job Description
(i) Clause 15 "This contract of employment is subject to the Disciplinary Procedures/Rules and Standards stipulated by the Trust incorporating appeal mechanisms as within its 'Disciplinary Procedure' ".
(ii) Clause 17 "Your duties will include all work normally covered by your job title including, without limitation, the duties set out in the attached job description. You may be required to undertake duties not specified in the job description but which the Trust may reasonably require you to do and which, in the opinion of the Trust, you should be capable of performing "
(i) The Defendant would not without reasonable and proper cause act in a manner that would destroy or seriously damage the relationship of trust and confidence between the Claimant and the Defendant (the implied duty of trust and confidence);
(ii) Any decision to suspend the Claimant from her normal duties would not be exercised on unreasonable grounds.
The Disciplinary Procedure and Associated Guidance
(i) Paragraph 4
"Investigating Officers must have an appropriate level of professional knowledge and be trained to undertake investigations. "
(ii) Paragraph 4.1.18
"Suspension and temporary deployment do not constitute disciplinary action. Suspension should be applied if it would be inappropriate or unsafe for the Trust and/or the member of staff to remain at work in their substantive role.
Where appropriate these will be carried out in accordance with Appendix C.
Prior to any suspension or temporary redeployment staff will be advised of the nature of the complaint and may comment if they so wish before a final decision on implementing these actions is made."
(iii) Appendix C Suspension/Temporary Redeployment Principle
"Temporary redeployment should be considered as an alternative to suspension; if this is possible it should be discussed and agreed with the member of staff.
Staff are entitled to be represented or accompanied at a suspension meeting and should be given time to arrange this.
Suspension should be for as short a time as possible.
Divisional Directors/Managers/Nurses will review all cases where a member of staff within their sphere of responsibility is suspended on full pay for a period exceeding 10 working days to ensure that due process is being followed and will take such action as necessary to mitigate any delays in the investigation process.
Divisional Directors/Managers/Nurses will ensure any member of staff on suspension for more than 3 weeks is kept regularly informed, in writing, of the reason(s) for continued suspension and the status of the investigation, together with how much longer the period of suspension is expected to last. "
(i) Paragraph 5 Decisions relating to the implementation of suspensions/exclusions
"Any decision to suspend/exclude an individual should not be taken by one person alone, or by anyone who has an identified or perceived conflict of interest. Except where immediate safety or security issues prevail, any decision to suspend/exclude should be a measure of last resort that is proportionate, timebound and only applied when there is full justification for doing so. The continued suspension/exclusion of any individual should be subject to appropriate senior-level oversight and sanction."
(ii) Paragraph 6 Safeguarding people's health and wellbeing
"(a) Concern for the health and welfare of people involved in investigation and disciplinary procedures should be paramount
(b) A communication plan should be established with people who are the subject of an investigation or disciplinary procedure, with the plan forming part of the associated terms of reference. The underlying principle should be that all communication , in whatever form it takes, is timely; comprehensive; unambiguous; sensitive; and compassionate. "
Legal Principles
a) is there a real prospect of succeeding in a claim for a permanent injunction at trial (serious issue to be tried)?
b) would damages be an adequate remedy?
c) does the balance of convenience favour the grant of an injunction?
"when the effect of the injunction is to require reinstatement of an employee, the Court must have proper regard to the fact that the decision to exclude requires an assessment of evidence and an exercise of judgment which is likely to require the balancing of several difficult factors and that decision was for the employer to make: Mezey [28]. Correspondingly, to succeed in a claim for breach of contract, the claimant would have to demonstrate that the decision to suspend was unreasonable or irrational. That may mean that the Court should give rather more weight to a provisional assessment of the merits than would be necessary on a pure application of the 'serious issue to be tried' test: Mezey [11].
as to whether damages will be an adequate remedy, in employment cases where the complaint is over suspension, a suspension that is found to be unlawful may well not be capable of being fully healed by an award of damages: Mezey [26]; Watson [1],[24]"
Submissions
Serious issue to be tried
Damages adequate remedy
Balance of Convenience
Decision
Breach of implied duty of trust and confidence: Are there arguable grounds?
Relevance of Duty Not to Suspend Unreasonably
(i) The purported rationale for the initial suspension on 2 August 2019 was to protect the Claimant and the Defendant from the possibility of any accusations of wrongdoing while a disciplinary matter was under investigation. The letter of suspension makes reference to 'concerns' but the main concern raised by the Capsticks Review and highlighted by the Defendant in the letter is the Claimant's handling of the NR case. The measure adopted by the Defendant to address the identified risk had to be proportionate to that risk. In the context of the Claimant's undisputed professional integrity and an independent review of her caseload, the concerns raised, even if well-founded, were insufficient, individually or cumulatively, to justify total exclusion in the form of suspension from all normal duties.
(ii) Although there is no indication from the initial letter of suspension that the Defendant considered alternatives measures Mr Avery states in his witness statement that alternatives were carefully considered. These alternative measures are not identified. Mr Avery stated that it was his view at the time that the concerns raised by the NR case may not be " isolated concerns about a specific area of her litigation or advisory practices or that the same concerns about her judgment would not be equally risky in relation to work other than the management of clinical negligence cases." Such a broad-brush approach may have led to the conclusion that there were no alternatives to suspension, but the approach was flawed. Neither the Capsticks Review nor the subsequent Case Review provided an adequate justification for suspension from all normal duties.
(iii) The need to investigate the concerns did not provide a reasonable or proper cause to suspend the Claimant from all duties as it would not have been 'inappropriate or unsafe', for the Claimant to remain at work in her substantive role with a restriction relating to the conduct of clinical negligence cases.
(iv) The suspension decisions departed from the NHS Improvement Guidance as they were not proportionate, were not fully justified and there is no evidence that the Claimant's health and welfare was of paramount importance.
(v) Mr Avery stated in his witness statement that once arrangements had been made for external providers to deal with the clinical negligence and inquest work the Defendant was able to consider whether suspension remained necessary. However, that assessment of the position appears to ignore that fact that these measures were required as a direct consequence of the Defendant's decision to suspend the Claimant and her line manager. It is unlikely that the inquest work would have had to be referred to a panel firm if a proportionate response had been taken by the Defendant at the outset.
Duty of implied trust and confidence
(i) There was arguably no reasonable and proper cause for the suspensions (for the reasons set out above) and as a consequence no justification for subsequently restricting the Claimant's duties to legal teaching, policy work and supervised casework.
(ii) The criticisms of the Claimant's inquest and medico-legal work, purporting to justify a restriction of her duties, have been made after the decision to suspend. There was no evidence in Mr Avery's witness statement or in the contemporaneous documentation that there were any concerns about the Claimant's handling of the Defendant's inquest work or her medico-legal advice more generally at the time. On the contrary, the Claimant's evidence is that her inquest work has been highly effective. There is no evidence of mismanagement of the inquest work or erroneous medico-legal advice in the warning letter, the first suspension letter, in the first Terms of Reference or in the expanded Terms of Reference. There was also no challenge to the Claimant's assertion that the allegation that she is rude and unprofessional to panel solicitors had not been raised with her during her appraisals. Therefore, restriction of the Claimant's ability to undertake inquest and medico-legal work without supervision is not justified.
Adequacy of Damages as a Remedy
Balance of Convenience
Conclusion