Suspension: Solicitor who was suspended wins right to continue to perform most of her duties

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Suspension: Solicitor who was suspended wins right to continue to perform most of her duties

Published 5 febrero 2020

The High Court has granted an interim injunction requiring an employer to permit a solicitor who had been suspended from some of her duties to perform the majority of her normal duties.

THE FACTS

Ms Harrison is a solicitor and the Deputy Head of Legal Services for Barking, Havering and Redbridge University Hospitals NHS Trust. Her role consists of managing clinical negligence and personal injury claims against the Trust, advising and representing the Trust at inquests, and advising on medico-legal issues and relevant legislation and teaching.

Ms Harrison was suspended following concerns about her handling of a clinical negligence case after the Trust had lost a trial. She was not given details of the concerns when she was suspended. She was subsequently diagnosed with stress. Nearly three months later, she was told that the suspension would be lifted and that she could come back on a phased return but that she would not be allowed to conduct claims work. Occupational Health advised that she would not be “fully back to normal until she has resumed work”.

Ms Harrison refused to return to restricted duties, on the basis that it was a demotion and contrary to medical advice. She was suspended again for failure to follow a management instruction.

Ms Harrison successfully sought an interim injunction permitting her to perform all the normal duties of her role except for clinical negligence claims. 

The High Court considered that Ms Harrison’s application met the legal test (established by case law) which courts are required to apply in deciding whether to grant interim injunctions. The Court decided that Ms Harrison had strong grounds to argue that the Trust’s actions amounted to a breach of the mutual implied term of trust and confidence because there was no reasonable and proper cause for suspending her from all her normal duties. The Trust’s main concern had been about Ms Harrison’s handling of a clinical negligence case; this did not create a need to suspend her from duties that did not relate to clinical negligence. The Court also decided that the evidence did not demonstrate that any harm would be caused to the Trust in permitting Ms Harrison to resume her inquest and medico-legal work. However, there was clear evidence from Ms Harrison that excluding her from her place of work had caused significant personal upset, health issues (she said she had panic attacks when she thought about not being able to return to the work she loved), was professionally to her detriment, and that permitting her to return to her normal duties would enable her to regain her health.

WHAT DOES THIS MEAN FOR EMPLOYERS?

It is very unusual for a court to either order an employee to carry out work or to order an employer (as was the case here) to allow the employee to work. However, this case shows that courts will order an interim injunction to prevent suspension where an employee has a convincing argument that the mutual implied duty of trust and confidence has been breached. Even where an employer has an express clause to suspend, as was the case here, the employer’s rationale for the suspension must be logical and relevant to any alleged issues with performance or conduct. It was also of note in this case that Ms Harrison, as a solicitor, was a regulated professional. The position may be different where an employer has an express power to change/remove duties at any time during an employee’s employment.

This decision is consistent with recent case law which shows that it is increasingly difficult for employers to suspend employees without risking a breach of trust and confidence and/or arguments that a subsequent dismissal was pre-judged. Suspension should not be a knee jerk reaction, employers should only suspend or restrict duties where they are confident that they have clear grounds for doing so and that they have considered alternatives to suspension or the restrictions. Good practice is also to make clear to an employee why they are being suspended or their duties restricted so unnecessary stress, in what is already a difficult situation for an employee, is not created.

Harrison v Barking, Havering & Redbridge University Hospitals NHS Trust [2019] EWHC 3507

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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