Kircher v Hillingdon Primary Care Trust

On an application for an interim injunction preserving contractual employment rights, the court should apply the American Cyanamid approach where the order sought is substantially prohibitory. A serious issue may arise where an employment contract contains both a notice provision and disciplinary procedures, particularly where dismissal is contemplated on grounds of professional misconduct or incompetence. Damages may be inadequate for a senior doctor who would lose the opportunity to clear his professional reputation through a contractually agreed disciplinary process. The status quo is assessed by reference to the date when the applicant clearly intimated the intended injunction, rather than necessarily the hearing date. The court may preserve the employment contract pending trial without ordering reinstatement or compelling the employer to commence disciplinary proceedings.

Dr Michael Kircher, a consultant psychiatrist, sought interim relief against his employer, Hillingdon Primary Care Trust, after receiving a letter purporting to terminate his employment immediately and offering payment representing the contractual notice period.

His contract provided for three months’ notice and incorporated professional disciplinary procedures, including the HC(90)9 procedure. The Trust maintained that it could rely on the notice provision, that disciplinary procedures were irrelevant after termination, and that damages were adequate.

The central issues were whether there was a serious issue to be tried concerning the interaction between the notice and disciplinary provisions, whether damages were adequate, and where the status quo should be fixed for the purposes of interim relief.

1. Outcome. An interim injunction was granted prohibiting the Trust from acting upon the letter of 26 May 2005, or otherwise treating it as an effective termination of the claimant’s contract, until trial or further order. The order did not direct reinstatement or require the Trust to commence an HC(90)9 process.
2. Nature of the relief. Although the application notice could suggest a mandatory order, its substance was prohibitory. The purpose was to preserve the claimant’s contractual status while the underlying issues were determined. The appropriate approach was therefore the American Cyanamid test, rather than the more demanding approach applicable to an interim mandatory injunction.
3. Serious issue. There was a serious issue as to whether the Trust was required to pursue the contractual professional disciplinary procedure before dismissing the claimant on grounds connected with professional misconduct or competence. The tentative argument that the notice provision superseded the disciplinary provisions was not compelling. Johnson v Unisys Ltd [2003] 1 AC 518 concerned an implied term requiring fair dismissal and did not resolve the tension between two express contractual terms. The reasoning in Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 and Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] EWHC 2407 provided substantial support for the existence of an issue requiring trial.
4. Adequacy of damages. Damages were inadequate because refusal of relief would deprive the claimant of the opportunity to answer serious professional allegations before the independent tribunal contemplated by his contract. That opportunity could materially affect his professional reputation and future employment.
5. Balance of convenience and status quo. The status quo was fixed at the date of the claimant’s solicitor’s letter requesting notice of any intended dismissal so that an injunction could be sought. At that date the claimant remained employed and subject to his contractual rights. The balance of convenience favoured preservation of that position. The claimant agreed to remain suspended pending trial, and the Trust’s financial exposure was addressed by the cross-undertaking in damages.