An employer was not vicariously liable for the actions of one of its employees who, to damage...
Suspension and injunction
Harrison v Barking, Havering & Redbridge University Hospitals NHS Trust
A suspended employee successfully obtained an injunction against her employer allowing her to resume most of her duties because there was no justification to restrict such duties.
Ms Harrison works as the Deputy Head of Legal Services for an NHS trust. As well as teaching, she mainly worked on inquests, handling claims and providing advice. Concerns about her handling of a clinical negligence case were raised. She had not previously received criticism of her casework. The trust suspended her while an investigation took place. She wasn’t given details of the allegations that she was facing at the time of her suspension. Subsequently she was signed off with stress and anxiety. The trust lifted her suspension and she was treated as being on sick leave. She was invited to return to work on restricted duties, doing largely administrative work and legal teaching, but with no casework. She refused to do so because she considered that to be a demotion and contrary to OH medical advice which was that a return to full duties would improve her health. As a result, Ms Harrison was suspended again, this time for refusing to obey an instruction. She sought an injunction permitting her to perform the majority of her duties autonomously while the investigation continued.
High Court decision
An interim injunction was granted. The grounds for doing so were:
- she had strong grounds that the trust’s actions amounted to a breach of the implied duty of trust and confidence - in particular, she had an arguable case that there was no reasonable and proper cause for suspending her from most of her normal duties. There had only been an issue raised in relation to a specific type of work, i.e. the handling of clinical negligence claims; suspension from all her normal duties was excessive
- criticisms of her work, which purported to justify the restrictions on her duties, had only been made after the decision to suspend, and
- the balance of convenience was in her favour - there was no evidence that enabling her to undertake the majority of her normal duties would harm the trust (she’d voluntarily agreed not to undertake clinical negligence claims) whereas the suspensions had affected her health and were to her professional detriment
Link to judgment: https://www.bailii.org/ew/cases/EWHC/QB/2019/3507.html
Successful injunction applications are rare in employment cases (not least because of the cost of doing so). This case was unusual as Ms Harrison decided to apply for an injunction rather than resigning in response to the breach of trust and confidence and bringing a claim of constructive unfair dismissal, but the principles remain the same.
Suspension can be a useful tool for employers, but every suspension must be considered on a case-by-case basis; it must never be a knee-jerk response. Employers need to satisfy themselves - and be able to show - that there are reasonable grounds for the suspension and that it is proportionate. A decision to suspend without supporting evidence is unlikely to be looked on favourable by a court or tribunal. Even where an employer has an express contractual power to suspend, as was the case here, its rationale for the suspension must be logical and relevant to any alleged issues with performance or conduct.
Some issues to consider before suspending might include:
- the impact on the employee’s reputation (particularly where senior staff are concerned or where the employee has a professional reputation) – there is often an assumption of ‘guilt’ on the part of colleagues, customers and third parties if someone is suspended
- the impact on an employee’s mental health of suspension, particularly where a prolonged suspension is involved, and
- are there any alternatives such as moving the employee temporarily to a different area of work?