Mezey v South West London and St George's Mental Health NHS Trust

An interlocutory injunction may restrain a contractual suspension from employment. Suspension is not necessarily a neutral act: for a qualified professional in vocational employment, it changes the status quo from work to no work and may cast a shadow over competence. The court has power to stay a suspension where it may constitute a breach of contract and the resulting loss may not be fully compensable in damages. The court should not interfere with an experienced employment judge’s provisional assessment of the contract and evidence unless it is clearly unsound. Interim relief may be limited by appropriate undertakings, while the final merits remain for trial.

Dr Mezey, a consultant psychiatrist, challenged the contractual lawfulness of her suspension by the Trust pending disciplinary proceedings. Underhill J granted an injunction restraining implementation of the suspension insofar as it affected her non-clinical duties, subject to her undertaking not to undertake direct clinical work. The Trust’s application for permission to appeal followed after the judge refused permission but stayed his order to permit an expedited application to the Court of Appeal. The issues were whether an injunction could restrain suspension and whether the judge’s provisional assessment of the contract and interim relief was unsound. The lower-court judgments are reported at [2006] EWHC 3473 (QB) and [2007] EWHC 62 (QB).

Application refused. Sedley LJ gave the judgment, with which Dyson LJ and Sir Peter Gibson agreed.

1. The judge’s decision to grant interim relief was properly and tenably reasoned. An appellate court should interfere with an experienced employment judge’s provisional appraisal of the contractual relationship only if it is clearly unsound. The judge’s conclusion that the contract arguably contained the relevant terms was entirely tenable: [2007] EWCA Civ 106, paras [7]–[10].
2. Suspension was not a neutral act. In the employment of a qualified professional whose work was also a vocation, suspension changed the status quo from work to no work and cast a shadow over professional competence. The Trust’s reliance on damaged trust and confidence, and on residual clinical duties, went to the content of the injunction rather than to the existence of the court’s power: paras [11]–[17].
3. There was no reason in principle why the court should be unable to stay a suspension when it could stay a dismissal. Both measures could constitute breaches of contract, although dismissal might be more fundamental, and neither loss was necessarily fully compensable in damages. The court noted the earlier view that an injunction restraining dismissal presented an insuperable barrier, citing Ali v Southwark [1988] ICR 567 at 582, but observed that the courts had recognised that view as artificial. The same reasoning applied to suspension: para [18].
4. Underhill J’s order therefore took effect pending the imminent trial. It remained subject to the claimant’s undertaking not directly or personally to assess, treat or care for patients. The application was refused: para [19].

1. Court of Appeal (Civil Division) — The Trust’s application for permission to appeal was refused. The interim injunction took effect pending trial.
2. Queen’s Bench Division — Underhill J granted an injunction restraining the Trust from implementing the suspension insofar as it affected the claimant’s non-clinical duties, in judgments reported at [2006] EWHC 3473 (QB) and [2007] EWHC 62 (QB).