Jahangiri v St. George's University Hospitals NHS Foundation Trust

An interim exclusion of an employee must be justified by necessity under the applicable contractual policy. The employer must identify the relevant risk, investigate the available evidence, consider the employee’s response, assess alternatives short of exclusion, and evaluate proportionality, including the impact on patients and others. Exclusion cannot be justified by an irrelevant investigation or by the mere fact that it may be convenient or appropriate. Where reinstatement is sought, the court may adopt a more exacting provisional assessment of the merits than the ordinary serious-issue threshold. An injunction may be granted where damages cannot adequately remedy the harm and the balance of convenience strongly favours return to work.

The claimant, a consultant cardiac surgeon employed by the defendant NHS trust, applied urgently for an interim mandatory injunction requiring her reinstatement. She had been excluded from work after attempting, through her secretary, to contact a colleague who was involved in disciplinary and workplace investigations. The exclusion was extended and a further exclusion was imposed on a separate basis concerning alleged breakdowns in working relationships.

The claimant alleged breach of contract and breach of the implied term of trust and confidence. The central issues were whether the exclusions complied with the Trust’s Medical and Dental Staff Conduct and Capability Policy, whether exclusion was necessary and proportionate, and whether interim relief should be granted.

The application was granted. The court ordered relief in relation to the exclusions imposed up to 24 August 2018, while declining to make any prospective order governing future decisions.

1. Applicable interim test. The court applied the three-stage test in American Cyanamid v Ethicon Ltd (No.1) [1975] AC 396: a serious issue to be tried, adequacy of damages, and the balance of convenience. Because reinstatement would require the employer’s evaluative decision to be displaced, a more exacting provisional assessment of the merits was appropriate, following Mezey v South West London & St George’s Mental Health NHS Trust [2006] EWHC 3473 (QB).
2. Contractual and policy requirements. An employer’s power to suspend or exclude must not be exercised on unreasonable grounds. Unreasonable suspension may breach the contract or the implied term of trust and confidence, as explained in McClory v Post Office [1993] 1 AllER 457, Watson v Durham University [2008] EWCA Civ 1266 and Gogay v Hertfordshire County Council [2000] IRLR 703.
3. 9 August exclusion. It was strongly arguable that the Trust had acted on inadequate and unclear evidence, failed properly to consider the claimant’s explanation, applied an “appropriate” rather than necessary test, failed to consider undertakings or other alternatives, and failed to assess proportionality or the consequences for patients and the hospital. The evidence did not establish a proper basis for concluding that the claimant’s presence was likely to hinder the relevant misconduct investigation.
4. 23 August extension. The investigation had substantially completed its witness interviews, weakening the original justification. The extension appeared to rest on expedience, impermissibly considered the separate Hollywood Review, and failed to assess alternatives, the claimant’s explanation, or the actual impact of continued exclusion.
5. 24 August exclusion. It was strongly arguable that the MHPS Policy supplied no power to exclude on issues expressly characterised as neither conduct nor capability matters. In any event, a second immediate exclusion was unnecessary while the claimant was already excluded.

Damages were inadequate, and the balance of convenience overwhelmingly favoured reinstatement. The court made provisional findings only and did not determine whether the Trust was pursuing a campaign against the claimant.