Mezey v South West London and St George's Mental Health NHS Trust

The claimant is a consultant psychiatrist, one of whose patients, a paranoid schizophrenic, killed another man in circumstances which led to a series of internal inquiries into the incidents on the part of the defendant Trust, which is either her employer or, it matters not at present, one of her two employers. Following the third of these reports, a decision was taken by the defendant to initiate disciplinary proceedings against her and meanwhile to suspend her from clinical work, but not from either the library or her office or, provided she came there for good reason and on informal notice, the Trust premises generally. The disciplinary hearing will probably take place early this summer.

A much fuller account can be found in the judgment of Underhill J [2006] EWHC 3473 (QB) and [2007] EWHC 62 (QB). Its accuracy is disputed in one respect by Mr Supperstone QC for the Trust, but the dispute does not require resolution at this juncture. Nor on the other hand is it disputed that the Trust has a contractual power of suspension.

The claimant, however, on advice disputes the contractual lawfulness of her suspension; hence these proceedings, for which a speedy trial has been set in the week beginning 19 February. But on 20 December 2006, Underhill J, following full argument, granted an injunction restraining the Trust, pending the trial, from implementing the suspension in so far as it affected the claimant’s non-clinical duties. It was so limited because the claimant agreed that it was appropriate for her to abstain pending the hearing from the diagnosis and treatment of individual patients. The Trust, for its part was and (as I understand it) remains willing for her to continue to use her office and the library. This has left in dispute whether the claimant might also continue to attend audit and case conferences and to organise the academic programme.

Underhill J was not asked directly to adjudicate on the detail of this. He was asked to hold, and he did hold, that it was cogently arguable that the contractual power of suspension had not been validly exercised in the first place, so that the preservation of the status quo became the resumption of the claimant’s employment, subject only to her own voluntary undertaking not to resume direct clinical work.

Having made his order, which is a matter of record and which I will not read out, the judge refused the Trust permission to appeal. What he also did, however, was stay the operation of his injunction upon the Trust’s undertaking expeditiously to renew its application before this court. Given that full trial of the action is to take place less than two weeks from now, I venture to doubt whether but for its undertaking to proceed in this way, the Trust would have considered it an apt use of resources to seek to appeal rather than proceed directly to the trial which is imminent. But for better or for worse the application is now before us.

Mr Supperstone puts it on two alternative bases. First, that it is wrong in legal principle for a court, at least pending trial, to restrain a suspension as opposed to a dismissal. Secondly, that if the judge had such power, his exercise of it was so faulty as to justify the intervention of this court. It is convenient to follow Mr Supperstone’s course this morning and to deal with the second limb first.

It seems to me that the judge’s decision to grant an injunction, assuming for the present that he had the power to make it, was properly and tenably reasoned. I do not propose to explain in detail why: a reading of it will show what the judge took into account and how he weighed up the legal arguments and factual evidence before reaching his conclusion. Under this head, however, the amended grounds of appeal take issue with the judge’s provisional appraisal of the content of the parties’ contractual relationship.

This is a judgment, especially when made by a judge with extensive knowledge and experience of employment law, which the court will interfere with only if it is clearly unsound. Mr Supperstone contends that it is, but for the reasons spelt out by the judge at paragraphs 12 to 18 of his judgment I do not think that this can be viably asserted. It is at trial later this month that a fresh look will be taken at the contractual material and a final decision be reached as to what the contract included. For present purposes I consider that the judge’s appraisal of what the contract arguably contained is entirely tenable.

Having so decided, the judge found it arguable that the Trust had failed to apply the contract properly, not in relation to clinical work, from which the claimant had voluntarily withdrawn, but in relation to the entirety of her non-clinical activity. He did so avowedly against the background of a long period since the initial disaster, including two previous inquiries during which suspension had not been deemed necessary, but decided simply upon the footing that this had given the claimant two years’ grace during which she had not done anything further to call her own clinical competence in question.

It seems to me that if the judge had power to grant an injunction, his decision to do so, and the terms in which following further argument he eventually did so, are not vulnerable to challenge in this court. Did he then have power to grant an interlocutory injunction restraining a suspension from employment?

Mr Supperstone accepts that it is perfectly permissible to restrain a dismissal, but he contends that a suspension is a qualitatively different affair. It is, he submits in the skeleton argument:

“a neutral act preserving the employment relationship”.

I venture to disagree, at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence. Of course this does not mean that it cannot be done, but it is not a neutral act. Indeed, Mr Supperstone goes on in his skeleton argument to justify the suspension on the grounds that the criticisms of the claimant in the most recent report were serious and that she had -- I use his word -- “failed” to accept the criticism of her in the two previous reports.

The justification of all this awaits the judgment of the disciplinary tribunal, but it seems to me inescapable that the Trust’s decision to suspend the claimant meanwhile was not and could not be expected to be a neutral act. Like the court in its turn, the Trust was trying to do the best thing for the time being, but in the judge’s considered view it had arguably mistaken its legal powers in so doing.

Mr Supperstone has sought to distinguish a stay of suspension as not having the same purpose as a stay of dismissal, namely to preserve the contractual relationship. He says that here there is a breakdown of trust and confidence, not at base but pending the disciplinary inquiry and affecting, meanwhile, the claimant’s clinical judgment. This, he submits, no injunction can repair or should purport to repair.

It might be thought that the preservation of employment pending suspension is a less drastic step than the preservation of employment against a threat of dismissal. The latter used to be regarded as an insuperable barrier to an injunction (see Ali v Southwark [1988] ICR 567(582)), but the courts in recent years have recognised that it is sometimes an artificial one. The same, it seems to me, is true of the present suspension.

A reading of the documentation makes it clear that the Trust has sought throughout to act responsibly, not precipitately, and to confide the decision on the claimant’s competence to an independent tribunal. It shows that the claimant for her part has tried to meet the Trust halfway by agreeing not to undertake direct clinical work, leaving only the disputed areas that I have mentioned. Indeed, it seems a great pity that the relationship has had to be litigated at all.

I cannot accept Mr Supperstone’s reliance on the residual or secondary clinical duties, which are all that stand between the parties, as capable of establishing a relationship of trust so damaged that no injunction should have been granted. This aspect of the case, it seems to me, goes simply to the content of the judge’s order, something which is not the subject of the present application. Nor am I able to accept that, absent a threatened repudiation by dismissal, there is nothing in law on which the court’s power of restraint can bite.

There seems to me to be no reason of principle why the court should be without power, if in all the other circumstances it judges it right to do so, to stay a suspension just as it may stay a dismissal. Each is capable of being a breach of contract, the one no doubt more fundamental than the other, and each is capable of not being fully compensable in damages.

I would therefore for my part refuse this application for permission to appeal. The effect of the refusal, if my Lords agree, will be that the judge’s order now takes effect, but only pending the trial which will take place later this month. It is limited by the claimant's undertaking “not directly or personally to assess, treat or care for patients” but not otherwise.

LORD JUSTICE DYSON: I agree.

SIR PETER GIBSON: I also agree.