Sarker v Worcestershire Acute Hospitals NHS Trust

An employee seeking an interim injunction to stop a contractual disciplinary hearing must satisfy the usual principles in [1975] AC 396. Where the injunction would, in practical terms, dispose of the substantive claim, the court must assess the claimant’s prospects of success beyond the modest threshold of a serious issue to be tried.

Disciplinary panels should ordinarily decide procedural fairness in the first instance. Courts should avoid micro-managing disciplinary proceedings, intervening only where there is a clear wrong. The existence of contractual appeal provisions is relevant, particularly where a successful appeal can revive the employment contract. Delay is not necessarily a bar, but the claimant should ordinarily raise procedural objections with the panel before applying to court.

The claimant, a consultant surgeon employed by the defendant, applied for an interim injunction restraining continuation of an internal disciplinary hearing concerning alleged dishonesty, gross negligence, misleading information and failures in clinical and research standards.

He argued that the management case had been supplied too close to the hearing, that he lacked time to obtain expert evidence, and that a recent diagnosis of dyslexia required an adjournment and procedural adjustments. The disciplinary panel refused an adjournment but indicated that adjustments would be made and that it might obtain independent expert evidence. The claimant and his legal team then withdrew from the hearing.

The central issues were whether the interim injunction test was met, whether the court should intervene in the disciplinary process, and whether the contractual appeal mechanism provided an adequate safeguard.

1. The application for an interim injunction was refused. The principles in [1975] AC 396 applied. Because an injunction would probably make it impossible for the hearing to resume before the substantive relief sought, the court had to make some assessment of the claimant’s prospects of success beyond the modest serious-issue threshold: [1991] 1 WLR 251 at 258.

2. The defendant was contractually required to follow its disciplinary policy, including the provision of the management case at least 10 working days before the hearing. That requirement had been met. The use of the word ‘at least’ did not make a longer period necessary on these facts. The charges were materially unchanged from the draft charges supplied earlier, and the panel was entitled to assess whether the claimant had sufficient time to prepare.

3. The panel had responsibility in the first instance for ensuring that the hearing was fair. The court should not micro-manage disciplinary hearings and they should generally be allowed to run their course. Intervention may nevertheless be justified where there is a clear wrong. The panel had shown willingness to accommodate the claimant’s dyslexia through verbal instructions, plain English, additional time, breaks and other adjustments. Its refusal to adjourn immediately to obtain a further report was within its discretion, particularly given the late production of the dyslexia report.

4. The panel was entitled to consider the claimant’s late identification of witnesses. The disciplinary policy gave it the final decision on which Trust witnesses should be called. The claimant could argue that hearsay evidence deserved less weight because it had not been tested by cross-examination.

5. The contractual appeal procedure was relevant to whether court intervention was appropriate. Although dismissal for gross misconduct could take immediate effect, a successful appeal could revive the employment contract, applying the principle in [2005] ICR 254 at [22]–[26], after consideration of [1986] ICR 192. The claimant’s delay did not independently justify refusing relief, but the claim would have been premature had he applied before seeking a direction from the panel.