Alexander-Wight v Barts NHS Trust HQ17/0599

An employer must conduct disciplinary and suspension processes fairly, consistently and in accordance with its own procedures. Suspension is not a routine response to the need for investigation. Before suspending an employee, the employer should identify the concerns, give a fair opportunity to respond, consider appropriate alternatives and give clear reasons for the decision. A disciplinary process conducted without proper notice, disclosure of the allegations or adherence to the employer’s policy may justify interim injunctive relief where the process arguably breaches the employment contract. The court may intervene without micromanaging every procedural step where the process has become fundamentally unfair.

The claimant, a band 6 midwife employed by the defendant NHS Trust, sought interim injunctions preventing the Trust from continuing her suspension and from taking further disciplinary action. The application followed an investigation into a patient’s cardiac arrest and severe hypoxic brain injury. The Trust initially adopted supportive measures, but later summoned the claimant to an inadequately notified meeting and suspended her when she declined to answer questions without preparation or representation.

The central issues were whether the suspension and disciplinary process were contractually unlawful, whether the claimant had established a serious issue to be tried, whether damages would be an adequate remedy and where the balance of convenience lay.

1. Application granted. The court made the orders sought, restraining the continuation of the claimant’s suspension and further disciplinary action.
2. The Trust had materially changed its position after a meeting at which the claimant reasonably understood that supportive measures had been adopted. It then invited her to a further meeting without properly explaining its purpose, the allegations, the possible consequences or who would attend. She was not given a fair opportunity to prepare or to be accompanied or represented.
3. The process was inconsistent with the Trust’s own disciplinary policy. The Trust also relied on a purported conduct and capability policy which had not been produced to the claimant or the court. The uncertainty surrounding that document further undermined the decision-making process.
4. The suspension appeared, at least on the material before the court, to have followed from the claimant’s refusal to participate in an inadequately arranged meeting rather than from a properly explained and considered assessment of patient-safety risk. The court regarded the process as wholly unfair and fundamentally mismanaged.
5. The court accepted the approach in Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB): suspension is not a routine response to an investigation and alternatives should be considered. The present case was not materially distinguishable.
6. The agreed interim-injunction principles required consideration of the contractual basis for intervention, whether there was a serious issue to be tried, the balance of convenience and the adequacy of damages. Those considerations supported intervention in the circumstances.