Lauffer v Barking, Havering & Redbridge University Hospitals NHS Trust

Interim relief may preserve an employment contract where there is a serious issue that the employer dismissed in breach of an express contractual disciplinary process. A contractual right to terminate on notice does not necessarily permit the employer to ignore an applicable contractual procedure. A loss of trust and confidence must have an intelligible and proper cause. Where that cause is in substance an employee’s lack of judgment, insight or competence, it may fall within a contractual capability procedure and cannot be removed from that procedure merely by relabelling the dismissal as being for some other substantial reason.

Damages may be inadequate where dismissal has deprived the employee of the opportunity to clear his name or avoid dismissal. The balance of convenience may favour an injunction restoring the parties to the contractual process, even where the employee remains suspended and cannot immediately resume practical duties.

The claimant was a consultant general surgeon employed by the defendant NHS Trust. After a series of clinical and professional concerns, he was suspended by the Trust and his registration was also subject to an interim suspension by the General Medical Council.

The Trust initially pursued disciplinary procedures concerning capability and conduct. It later dismissed the claimant for an irrevocable loss of trust and confidence, stating that the dismissal was neither a misconduct nor a capability dismissal. The claimant alleged that the Trust had bypassed the contractual procedure applicable to capability concerns and sought an interim injunction preventing the dismissal from taking effect.

The central issues were whether there was a serious issue to be tried, whether damages would be an adequate remedy, and where the balance of convenience lay.

1. Interim injunction granted. Applying [1975] AC 396, the claimant established a serious issue to be tried, damages were inadequate, and the balance of convenience favoured relief.
2. The express contractual disciplinary provisions were materially different from an implied term governing dismissal. Accordingly, Johnson v Unisys Limited [2003] 1 AC 518 did not justify treating the contractual procedure as optional. A contractual right to terminate on notice could not simply be used to disregard an express disciplinary process.
3. A consultant surgeon’s lack of judgment or insight was strongly arguable as a capability issue. The Trust’s asserted loss of trust and confidence had to rest on an intelligible and proper cause. On the evidence at the interim stage, the real cause appeared arguably to be an adverse view of the claimant’s capability.
4. The contractual category of some other substantial reason was residual. It applied where there was neither misconduct nor a capability issue, such as a clash of personalities. The MHPS-inspired procedure could not be sidestepped by relabelling allegations concerning capability.
5. The claimant had arguably lost the opportunity to clear his name and avoid dismissal. Those losses were not adequately compensable in damages. The offered appeal did not cure the omission of the initial contractual process, particularly since the dismissal letter was delivered at a meeting represented as informal.
6. The injunction would restore the contractual process rather than require an immediate return to clinical practice. The claimant remained suspended by both the Trust and the General Medical Council. The Trust’s reliance on Kircher v Hillingdon Primary Care Trust [2006] Lloyd's Rep Med 215 concerning the status quo did not govern these unusual circumstances.
7. The court did not reach a concluded decision on whether article 6 of the Convention on Human Rights was engaged. Relief was granted on the contractual and American Cyanamid grounds.