Harrison v Barking, Havering And Redbridge University Hospitals NHS Trust

On an application for an interim mandatory injunction requiring an employee’s return to normal duties, the court applied the American Cyanamid framework but imposed a higher threshold because the injunction would substantially reinstate the employee. The claimant had to show strong grounds for alleging that the employer’s suspension and restrictions were unreasonable and breached the implied duty of trust and confidence.

Suspension must be proportionate to the identified risk. An investigation alone does not justify total exclusion where a narrower restriction would protect the employer. Restrictions imposed after suspension also require reasonable and proper cause. Where damages cannot adequately remedy the loss of professional work and associated harm to health, and the employer faces no comparable risk, the balance of convenience may favour interim relief.

The claimant, an experienced solicitor employed as a Deputy Head of Legal Service by an NHS Trust, sought an interim mandatory injunction permitting her to resume most of her normal duties. She voluntarily agreed not to undertake clinical negligence casework.

The claimant had twice been suspended following concerns about casework and her response to proposed management instructions. The Trust had lifted the second suspension while restricting her to legal teaching, policy work or supervised casework, and proposed excluding her from inquest and medico-legal advisory work pending investigation.

The central issues were whether the claimant had a realistic prospect of establishing breaches of the implied duties of trust and confidence and to suspend only on reasonable grounds, whether damages would be adequate, and where the balance of convenience lay.

1. Interim relief. The application for an interim mandatory injunction was granted. The precise order was left for agreement, having regard to the claimant’s voluntary undertaking not to undertake clinical negligence casework.
2. Applicable threshold. The court applied the American Cyanamid test. Because the order would effectively reinstate the claimant with permission to perform her normal duties, a higher threshold than a merely serious issue to be tried was appropriate. The claimant had to demonstrate strong grounds for contending that the Trust’s acts, individually or cumulatively, breached the implied duty of trust and confidence.
3. Unreasonable suspension. The suspensions were strongly arguable to have been unreasonable. The concerns identified by the reviews, even if well founded, did not justify total exclusion from all normal duties. The Trust had to adopt a proportionate response to the identified risk. An investigation did not provide reasonable and proper cause for total suspension where it would not have been inappropriate or unsafe for the claimant to remain in her substantive role subject to a restriction on clinical negligence work.
4. The suspension decisions were arguably disproportionate and insufficiently justified. They also departed from the NHS Improvement Guidance, which required suspension to be a proportionate, time-limited measure of last resort and required proper attention to health and welfare.
5. Trust and confidence. It was strongly arguable that, absent reasonable and proper cause for suspension, there was no proper justification for subsequently restricting the claimant to teaching, policy work and supervised casework. The later criticisms of her inquest and medico-legal work were not supported by the contemporaneous evidence.
6. Remedy and balance. Damages were plainly inadequate. The evidence showed substantial personal and professional harm from exclusion from work, and that returning to normal duties would assist the claimant’s recovery. The evidence did not show comparable harm to the Trust if she resumed inquest and medico-legal work. The balance of convenience therefore overwhelmingly favoured the injunction.