Hendy v Ministry of Justice

This is an application for an injunction brought in an employment context and which seeks to restrain aspects of the conduct of a disciplinary process. In the application notice of the claimant the relief sought is described as "interim injunctive relief prohibiting the respondent/defendant from conducting an internal hearing into allegations made against the claimant until the claimant's claim be determined." The claim referred to is presumably that referred to in draft particulars of claim which have been provided but not served at the time of the hearing and which seek a restraint against proceeding with a formal disciplinary hearing at all, or proceeding with a formal disciplinary hearing on the basis of certain allegations of gross misconduct, or proceeding with a formal conduct disciplinary hearing on any basis until a fresh investigation has been conducted by an independent person to be agreed between the parties. Other claims have been outlined in correspondence, but what the application really boils down to, in my view, is an application for an injunction restraining the respondent employer from proceeding to a disciplinary hearing which it has indicated it intends to convene to consider conduct which an investigator has recommended be treated as gross misconduct on the part of the claimant employee. That is the form of application which I shall consider.

Mr Michael Paulin, appearing under the direct access rules, appeared for Mr Hendy. Ms Rachel Toney appeared for the MoJ.

The timescale of this matter is extremely unfortunate. As will appear, Mr Hendy has been suspended on full pay since December 2011 and has not carried out any of his duties as a lawyer in the Civil Appeals office and as a Master in the Court of Appeal since that date (2½ years ago). The reasons for the delay are various, and it is not necessary for me to attribute any blame for it.

The applicant, Mr Hendy, has been employed by the defendant (the MoJ) as a lawyer since 2002. In January 2007 he was appointed as Acting Senior Lawyer in the Civil Appeals Office and on 4th of August 2008 was appointed Deputy Master for the Court of Appeal. In December 2011 two female lawyers in the Court of Appeal office made written complaints about the conduct of Mr Hendy. Those complaints were investigated in a manner which the MoJ says was ultimately in accordance with the relevant procedures and the next step would be the convening of a disciplinary hearing. This application is made in advance of such a hearing in order to restrain it. I shall have to set out the facts in more detail in due course, but they need to be understood in the context of the specified disciplinary procedures.

The MoJ has a written procedure for dealing with disciplinary matters entitled "Discipline policy and guidance". The version that I saw bore the date January 2014, but I was assured by both sides that all relevant parts of that document were the same as the document which applied to Mr Hendy at the time of his suspension and the ensuing investigations. The document contains the following relevant passages.

The document starts with a "Policy statement" which says:

"Minor instances of misconduct will generally be addressed informally through normal day to day management action. The formal disciplinary process will be used for more serious misconduct or where the employee continues to repeat minor misconduct."

The document goes on:

"Discipline policy

PURPOSE

This policy and the related guidelines:

•

Set out the disciplinary process for all to see.

•

Show managers how to respond to misconduct in a way that resolves issues promptly, focuses on improvement and protects employee's rights.

•

Shows employees how they can be expected to be treated if they become involved in a disciplinary process.

...

WHO DOES IT APPLY TO?

This policy applies to all permanent and fixed term employees …

This policy does not form part of your contract of employment. However, you are bound by the provisions of this policy which may be amended from time to time."

The document then goes on to deal with a definition of misconduct, giving examples of minor, serious and gross misconduct. At page 6 it states that the MoJ has a zero tolerance policy in relation to bullying and harassment (inter alia). Gross misconduct is expressed as being a breach that is so serious that it:

•

"Destroys the relationship of trust, upon which the employment contract is based, and makes any further working relationship impossible;

•

Risks MoJ's property (including reputation); or

•

Risks MoJ's obligations to other parties…"

Page 7 deals with employee's "rights":

"Employees who are subject to disciplinary process have the right to:

•

Be advised in writing that their conduct is the subject of a disciplinary investigation and the nature of the allegations against them.

•

Reasonable written notice of the date and time of a disciplinary hearing with a copy of the investigation report with at least 5 working day's notice to prepare and respond to the allegations against them at the hearing.

•

Be accompanied or represented at the disciplinary hearing.

•

Be notified in writing of the outcome of the process.

•

Appeal the outcome of the disciplinary hearing.”

Page 8 contains the roles and responsibilities of Managers conducting a disciplinary process and of Investigation Officers. It puts certain obligations on a manager including an obligation to:

“Manage the process in a fair and transparent manner.”

In the next column it provides for how "Investigation Officers" are to go about their tasks:

"Investigation Officers will:

•

Identify and consider all relevant evidence.

…

•

Produce an investigation report, which fairly and objectively accounts for all relevant evidence and justifies its recommendations.

•

Produce a summary investigation report for the manager to pass to the employee."

It also specifies what employees “will” do:

“Employees subject to a discipline process will:

…

•

Co-operate fully with the process and enable a speedy and fair resolution.

•

Attend meetings when required

…

•

Advise the investigating manager of any witnesses and/or evidence they would like considered during the process.

•

Be available for meetings if suspended.

…

•

Lodge any appeal within 15 working days of being informed in writing of the outcomes of the process.”

Section 3 deals with process. It notes that:

"Each disciplinary process will be different due to variations in the form of the misconduct, its severity, the number of people involved, the employee's disciplinary history and mitigating factors. However, a disciplinary process normally follows these steps:

…

2.

An investigation of the allegations either by the manager or by an investigation officer appointed by the manager.

3.

A disciplinary hearing where the employee will have the right to respond to the allegations and to be represented or accompanied.

4.

The manager making decisions and advising the employee."

The next page deals with the circumstances and mechanics of suspension; Page 12 gives certain rights to be accompanied or represented and the following pages deal with the possible outcomes of the process, including sanctions. Page 15 contains the following:

"The disciplinary process is a formal process designed to respond to breaches of the Conduct policy. Generally, managers should not depart from the process. However, in limited circumstances, and only in liaison with the HR Contact Centre and with the agreement of the employee, the following departures might be justified."

It then refers to departures required to meet disabilities and mental health matters.

Section 4 is headed "Manager's guidance" and provides precisely that. Amongst the guidance is guidance under the head: "Does there need to be an investigation?"; and "Who should do the investigation?". It goes on:

"The aim of the investigation is to make a justifiable recommendation about whether misconduct is likely to have occurred. So whoever conducts the investigation must make enough enquiries to ensure that they have all the available evidence and considered all relevant facts needed to make that recommendation."

Under the heading: "How do I collect evidence from witnesses?" The policy says:

"Witnesses are employees who have observed the alleged misconduct or relevant related behaviour. The person conducting the investigation will obtain statements from witnesses in a meeting or by request if the alleged misconduct is likely to be disputed or its extent is unclear."

Page 23 deals with the investigation report:

"WHAT IS THE INVESTIGATION REPORT?

It is a written report, the aim of which is to make a justifiable recommendation about whether the team member's behaviour constitutes a breach of the Conduct policy.

The report also gives the team member information necessary for them to understand the findings of the investigation.

The person conducting the investigation will complete the investigation report. The report will contain the following:

•

… Evidence and witness statements considered during the investigation as attachments.

•

… Conclusions drawn from the evidence and witness statements.

•

Objective assessments about the relative strengths of inconsistent evidence.

•

A recommendation about whether the team member has breached the conduct policy and why.

The above list is not exhaustive and the manager or the Investigation Officer may need to make available other relevant papers to the team member, if requested."

There then follows a short section about the disciplinary hearing. It indicates that at the hearing the employee would be able to respond to the allegation and explain his or her case. It does not suggest that the hearing will be a hearing at which witnesses can be confronted or challenged.

An issue arises in this case as to whether, and to what extent (if any) those particular provisions gave rise to contractual obligations. I deal with this point, so far as necessary, below.

There is a wealth of detail in the 2 bundles of evidence originally before me, and then in subsequent bundles, concerning what has happened since the end of 2011. Much of it fails to concentrate on the real questions, but fortunately the oral submissions of Mr Paulin have limited the real issues that arise in a manner which enables a more distilled version of the facts to be set out.

In November 2011 two female lawyers in the Court of Appeal office (MMJ and LA) made written complaints against Mr Hendy. The complaints centred around his attitude to other lawyers in the office and conduct which was said to be bullying, and undermining of other members of staff. Particular incidents were relied on which do not require setting out here. There were also allegations of casual racism, alcohol misuse, absenteeism and neglect of his official duties, both managerial and substantial. It is right to say at this stage that the complaints referred to in the preceding sentence were not pursued beyond the first investigation in this matter and the substance of the outstanding complaints relate to his bullying and intimidatory conduct in relation to members of staff. However, despite the fact that those other acts no longer feature in the complaints which the MoJ wishes to investigate, the fact that they were made forms a significant part of Mr Hendy's own complaints about the manner in which the disciplinary procedures have been conducted.

In December 2011 a decision was made that the complaints should be investigated. On 15th December 2011 Mr Tom Ring, Deputy Director Crime, Magistrates, was appointed as the Determining Officer under the disciplinary procedures, and a Mr Stephen McAllister was appointed as Investigating Officer. On 16th December 2011 Mr McAllister met with the complainants and produced a summary report on the 19^th December and on the same day Mr Hendy was suspended on full pay and asked to leave the building immediately. He was not allowed to finish the consideration and giving of some directions which he was in the course of doing at the time. He has complaints about the manner of his suspension, but they do not, in my view, go to the application which he makes to me.

Mr McAllister then set about producing a full Investigation Report. He produced it on 19th October 2012. It is a long document running to 70 pages plus appendices (which do not include witness statements from the complainants or any other witnesses). This report sets out a chronology from which it can be seen that in the first couple of months after the suspension Mr McAllister was obtaining information and conducting meetings with the complainants and others, and that between March and July he was dealing with Mr Hendy in order to conduct "fact-finding meetings" and to allow Mr Hendy to provide submissions and bundles. For a significant part of that time Mr Hendy was "signed off", apparently for stress. He did not provide bundles until 6 July 2012.

In section 9 of his report Mr McAllister set out a "Summary of Recommendations". He determined that there was more than sufficient evidence to be satisfied that the allegation of bullying and harassment was proved. He also expressed the view that the conduct would be regarded as serious misconduct. He went on to find that there was a pattern of ongoing intimidation and bullying of a number of workplace colleagues, whom he identified. This, too, he considered to be gross misconduct. He accepted the evidence of certain individuals as to remarks made by Mr Hendy about his ability to "get rid of people", which are categorised as a misuse of power and which, with the other matters, he categorised as gross misconduct. He found that Mr Hendy made a number of sexual innuendo remarks over time, meant in jest but having an adverse effect on the recipient. He found there was no case to answer on an allegation of casual racism and "no clear evidence to link the use of alcohol in the workplace and the performance of [Mr Hendy's]'s official duties”. He also found that there was no case to answer on various questions about Mr Hendy’s professional performance, partly on the basis that such issues fell to be dealt with (if at all) under another policy, or informally. He suggested that other issues might be thought to be not worth proceeding with given the major indications of gross misconduct.

During the course of the exercise Mr Hendy denied the allegations made against him. Part of his case was, and remains, that the complaints were trumped up and were effectively the result of a conspiracy between the two complainants, who fabricated them. He presented evidence of the views of others which he said conflicted with the complaints that had been made against him. The report purports to consider Mr Hendy's response and takes account of it.

It will be apparent that the report took some time to produce. Much of the delay was taken in time spent in seeking to set up a meeting between Mr McAllister and Mr Hendy, described as an intended “fact finding meeting”. However, Mr Hendy was unable to attend such a meeting, having been “signed off” for successive periods for stress. In the end there was no meeting in mid-May and it was decided to proceed on the basis of written submissions from Mr Hendy. They were eventually received on 6th July 2012, and comprised 131 pages of submissions and 679 pages of evidence.

Mr McAllister’s report was considered by Mr Ring, who decided that there should be a disciplinary hearing. After various delays at the request of Mr Hendy, after the proposal of various dates which were then vacated and after an occupational health report, the hearing was fixed for 12th March 2013. The day before the hearing Mr Hendy indicated that he would not be attending, so Mr Ring considered the matter on the papers. Having done so he wrote to Mr Hendy on 21st March 2013 providing a report which found gross misconduct and stating that he would be dismissed with effect from the date of the letter.

Mr Hendy appealed that decision, as he was entitled to, and the appeal was determined by Mr Philip Copple, Director of Private Sector Prisons. He delivered his decision on 19th July 2013, in which he overturned the dismissal decision and identified what he said was an omission in the original investigation. The omission was, he said, a failure to put Mr Hendy’s case to the complainants and others so that their credibility could be tested. What he said in his decision is heavily relied on by Mr Paulin, who appeared for Mr Hendy, so I need to set out some parts of it verbatim. His decision contained the following:

“6.

This issue of the credibility of the complainants and other witnesses is critical, given that Mr Hendy disputes the evidence and accuses the original complainants of giving maliciously false evidence.

...

8.

Ultimately, Mr McAllister does not accept Mr Hendy's contentions about the dishonesty of his colleagues. My concern is that he does so without ever putting directly to them Mr Hendy's version of disputed events or Mr Hendy's submissions above. It seems to me a fundamental and necessary testing of the evidence that this happens [sic] at some point in the process, and that it is unsafe to conclude on the credibility of the evidence against Mr Hendy without first putting his rebuttal and other evidence to the other relevant witnesses."

He notes that in some organisations this step can be taken at a disciplinary hearing, but that the MoJ does not have such hearings and went on:

"This puts the onus on the Investigating Officer to gather and evaluate all relevant evidence at the investigation stage of the process. Whatever the approach, it seems to me that the important principle is that there is a sufficiency of enquiry through the disciplinary process taken as a whole.

...

11.

I do not suggest it is necessary to shuttle back and forth repeatedly between the witnesses, putting any new fragment of evidence or nuance that emerges from one witness to all the others, before it is safe to draw a conclusion. But I do contend that in a case of potential gross misconduct, a sufficiency of enquiry does require that at some point in the disciplinary process, whether during an investigation or a hearing, that the alternative account of disputed events and other submissions of the person under investigation, which s/he claims are indicative of dishonesty in others, are put to those other witnesses to elicit and assess their responses. This did not happen in this case.

...

13.

HMCTS colleagues will need to consider the best means of addressing the deficiency I have identified, and the decision I have made to direct that the matter is reconsidered by another manager. I am conscious that this is far from straightforward. However, I do believe it is important for a further attempt to be made to address the matters investigated, because they are serious allegations and it is in the interests of all concerned and the MoJ that conclusions on them are reached. I have not been persuaded that Mr Ring's decisions should simply be overturned; my conclusion is that an important omission has prevented a sufficiency of enquiry, and it follows that the logical response should be to make good that omission. This would ensure a sound basis on which to reach conclusions on the allegations against Mr Hendy, one way or the other."

On the same day Mr Copple emailed a colleague, sending his decision letter and his note setting out the rationale for his decision. He observed:

"For what it is worth, I think consideration should be given to HMCTS adopting an exceptional approach to a disciplinary hearing, and hearing evidence from the Investigating Officer and witnesses, and allowing Mr Hendy (or colleague) to put questions to witnesses; if Mr Hendy was not in a position to do so (or even to attend), then the Hearing Authority could put to witnesses the matters I have identified need to be put to them."

Mr Paulin said that this cast light on what the appeal manager had in mind when he reached his decision and that he was concerned about the sufficiency of the enquiry. I find that his own note of his decision in fact expresses that concern, and this email really adds nothing to the case.

As a result of this a new Investigating Officer was appointed along with a new Determining Officer. The former was a Mr Simon Parsons and the latter was a Mr Sam Goozée. Mr Hendy was reinstated in the sense that the dismissal was effectively recalled and he resumed his status as being on suspension. His pay resumed, and he was given back pay in respect of the period between his dismissal and his "reinstatement".

Mr Hendy has managed to get disclosure of some of the subsequent internal emails which Mr Paulin submitted showed how the appeal decision was interpreted and how Mr Parsons intended to go about his task. On 22nd August 2013 Mr Parsons wrote to Mr Goozée saying:

"My view is that I should focus my assessment on the credibility issue on the evidence in relation to the allegations of bullying and harassment. Since no findings were ever made in relation to the other issues, it does not seem necessary to ask the complainants and witnesses to respond to Mr Hendy's submissions on the credibility of their evidence on those issues."

Mr Goozée's response to that was not in evidence.

On 6th September 2013 Mr Parsons replied to a request for information of the previous day. Mr Hendy's first question was:

"What are the specific allegations concerning my 'personal conduct' on which my current suspension is based and how, even if somehow now believed, each might be said to constitute misconduct by me of any kind?"

Mr Parsons responded that he could not comment on the basis for the suspension but he interpreted the allegations as including those that he then set out. He then set out the various points made by each complainant, including some on which no adverse finding was made. At question 5 Mr Hendy asked for confirmation that "the full evidence of my accusers' dishonesty [will] now be put to [the complainants] on all allegations?". He identified some particular matters. Mr Parsons' reply indicated that the complainants would be invited to respond to Mr Hendy's representations, after which Mr Hendy would be invited to make further submissions about the credibility of the witnesses.

Mr Parsons was obviously pondering how to go about his exercise because on 24th September 2013 he wrote an internal email reflecting on the point. It had apparently been suggested that his terms of reference would not allow him to express a view on Mr McAllister’s findings, and the thrust of the email was that he would find that hard to do, and felt he should:

“offer an opinion on the original findings, both in the light of any new evidence and more generally.”

Mr Paulin submitted that this email, taken as a whole, demonstrated an intention to rubber-stamp Mr McAllister’s findings. I disagree; I consider that it shows the exact opposite. Having said that, it would be a little understandable that suspicions would be raised by this email because it was disclosed to Mr Hendy with some redactions, two of which were just parts of sentences. When the unredacted copy was produced before the last day’s hearing before me it became apparent that the redactions were, in my view, wholly unjustified. Such things produce quite unnecessary suspicions. Mr Paulin’s submissions were made at a time when he had only the redacted copy to work with, though even then his submission was not justified even if some suspicion was.

Mr Paulin also submitted that this letter (at least in its redacted form) demonstrated some sort of subtle limiting and paring down of the investigation. I do not think it discloses that either. All it does is indicate the concerns which Mr Parsons had at that stage of the exercise. Even in its redacted form it demonstrated a desire to widen, not to narrow, the exercise. However, what ultimately matters is what he did, not what he thought he might do. There is enough evidence of what he did to make it irrelevant to consider any preceding deliberations as to how to go about the exercise.

Mr Parsons then went about his activities. His report is dated 16th October 2013. His conclusion was to express his satisfaction that Mr McAllister's own conclusion that Mr Hendy had breached the MoJ Conduct Policy in a number of significant respects was sound. In paragraph 9.7 he concluded:

"Taking all of the evidence into account, I recommend to the Determining Authority that the nature, duration, extent and impact of RH's conduct was sufficient to consider making a finding of gross misconduct."

He then went on to consider mitigating and aggravating factors. By way of mitigating factors, he noted the evidence of two Court of Appeal judges to the effect that Mr Hendy had made a significant contribution to the work of the Court of Appeal. By way of aggravating factors he indicated (in his own words) that the attacks of Mr Hendy on complainants and witnesses went beyond what was called for and had a "cruel tinge".

As will appear, what lies at the heart of this application is the methodology of Mr Parsons. It will be convenient to deal with the detail of the report and what Mr Parsons did in a separate section.

On the basis of that report Mr Goozée decided to hold a disciplinary hearing on 13th December 2013. Mr Hendy was informed of this on 5th December. He then sought to mount some sort of challenge to the decision to call a disciplinary hearing by writing to Dame Ursula Brennan (Permanent Secretary in the MoJ) despite the fact that such a procedure is not within the relevant policy. Ms Brennan declined to intervene because a disciplinary process was in train and informed Mr Hendy of that decision in a letter dated 29th January 2014. The disciplinary hearing date had been postponed and in due course a new hearing date was fixed for 25th March 2014. Because of concerns that Mr Hendy might not be fit for such a hearing the MoJ obtained another Occupational Health report, which confirmed that he was indeed fit to attend. On 12th March 2014 Mr Hendy served a letter before action indicating an intention to seek interim injunctive relief for breach of contract. It indicated that if the MoJ proceeded, or sought to proceed, with the disciplinary hearing then Mr Hendy would seek an interim injunction prohibiting the employer from proceeding with the hearing on the basis of the then present reports or otherwise until a fresh investigation had been conducted by an independent person, to be agreed by the parties. The MoJ responded that the investigation process was proper, and on 24th March Mr Hendy served an application seeking injunctive relief. As a result the MoJ adjourned the disciplinary hearing. It is that application which I have heard.

It seems that he managed to serve that application before issuing a claim form. He issued a claim form on 17th April 2014, seeking generalised relief based on breach of contract. He specified the wrong defendant, but has sought and been granted permission to amend to remedy that. However, somewhat surprisingly, he did not serve the claim form, and had not served it even by the time the application came on before me. He had, however, provided draft Particulars of Claim, on 12th June 2014. That draft was unverified by a statement of truth. Nonetheless, Mr Paulin cross-referred to it when he considered it to be necessary.

Mr Hendy seeks to restrain the pursuit of the disciplinary proceedings on the grounds that they are flawed to the extent of being a breach of contract which ought to be restrained. His claim, and the relief sought, has been put in various ways in various documents. However, for the purposes of the present application Mr Paulin has confined his case to a more limited central point, focusing on what is said to be one particular defect in the process. His argument starts from the premise that the Discipline Policy is contractually binding with the result that there was a contractual obligation to adhere to the terms of the policy. By reference to the draft Particulars of Claim he goes on to argue that there were implied terms of the contract that the defendant should not conduct itself in a manner likely to destroy or damage the employment relationship, should operate its policies in a fair and transparent manner and exercise any of its discretions under the policy in manner which was consistent with the provisions of the policy, with the mutual trust and confidence implied into every contract of employment and in a manner which was reasonable, in good faith, not arbitrary, not capricious, not perverse or irrational.

From those implied terms Mr Paulin’s first case (before me) was that there was a serious breach because when Mr Parsons came to conduct the second investigation he did not do properly what he ought to have done, because he did not adequately put Mr Hendy’s case to the complainants. The MoJ was under a contractual obligation to conduct an inquiry in which Mr Hendy’s case was properly put, because Mr Copple had determined that that was necessary. Mr Paulin’s submission was that that determination by Mr Copple created a contractual entitlement, but after overnight reflection he submitted that that determination did not necessarily create a binding obligation but reflected what the situation required anyway and that made it something that was contractually required. As a result of Mr Parsons’ activities the credibility of the witnesses was not properly tested and the conclusions reached by Mr Parsons were flawed. The MoJ was thereby in breach of contract. The effects of that breach ought to be restrained so that the disciplinary hearing, which would otherwise rely on the flawed report, should not take place. While other breaches are referred to in various documents, this was the breach on which Mr Paulin focused and which he invited me to consider. His case was that there was a serious question to be tried (at the very least) in relation to those matters, that damages for Mr Hendy would be an inadequate remedy (largely because he would lose the right to vindication if he could not have a proper inquiry into the facts at this stage), that damages would be an adequate remedy for the MoJ if an injunction were granted, and the balance of convenience favoured Mr Hendy. Therefore there ought to be an interim injunction restraining the pursuit of the disciplinary process until the trial of this action provided a binding decision on the rights of the parties. At the hearing he accepted that pursuant to the Crown Proceedings Act 1947 he could only obtain an interim declaration, but once that point (which is correct) is identified, nothing practical turns on that because I have the power to grant an interim declaration in the same circumstances.

Ms Toney averred that the policy was not part of the contract of employment, or any other contract, between the MoJ (Mr Hendy’s employer) and Mr Hendy. The most that might be said was that there was an implied term in the contract of employment that the policy would be followed, but that was different from making it a term of the contract. However, she did accept that there was an implied obligation to operate a fair process, and that the process should be considered in the light of the policy. She also accepted an implied obligation that the policy would be implemented in good faith. However, given all that , she sought to meet the alleged shortcomings on the facts, and to demonstrate that there was nothing in the allegations of Mr Hendy. Furthermore, damages would be an adequate remedy for Mr Hendy should it turn out that the MoJ had got it wrong, and that he would have a good claim in the Employment Tribunal where a finding could vindicate his reputation (if appropriate). Furthermore, Mr Hendy was not good on the cross-undertaking; in any event there was the additional consideration that, on the authorities, the courts should not micro-manage employment disciplinary disputes; and Mr Hendy had delayed unreasonably in bringing his proceedings.

The late stage at which Mr Paulin took his central point (the failure to put allegations properly) caused a procedural hiccup. As a breach it was not identified in the Claim Form (which in any event had not been served or otherwise provided until shortly before the hearing); it was not referred to in the application notice; and it was not identified as a particular breach in the witness statement of Mr Hendy provided in support of the application. The first time it emerged as a clearly stated breach was when it was listed with a number of other breaches in the draft Particulars of Claim, provided on 12th June, where it was listed with a number of other claims. That, however, was 10 days after the date of the defendant’s witness statement evidence. It was one of four particular breaches relied on by Mr Paulin in his skeleton argument. It is therefore not surprising that the evidence of the defendant did not deal with it clearly and as a particular item (which it did not). The result of that was that there was little positive evidence of and detail of what it was, if anything, that Mr Parsons did by way of putting Mr Hendy’s case to the complainants and witnesses. There was a general reference in his report (to which I will come) about putting Mr Hendy’s complaints to witnesses and complainants, but bearing in mind the length of his complaints it seemed unlikely that he put all of them to all the relevant individuals. It was therefore not clear what he did. The evidential position was therefore unsatisfactory on the key point around which the application, as eventually argued, turned; it was not really addressed. In the course of considering my reserved judgment it seemed to me that that evidential position was too unsatisfactory to be allowed to stand, because otherwise the case would have to be decided on generalised statements that seemed to be wide (as a matter of inference), but one did not know by how much. Accordingly I recalled the parties for a further hearing, as a result of which I allowed the MoJ to put in some further evidence on the point, provided for evidence in answer, and provided for further submissions to flow from that. This judgment is therefore written with the benefit of that additional material, and additional submissions made on it.

That additional material took the form of a witness statement from Mr Parsons in which he set out his approach to his task, focusing on what has become the main point in this hearing, and setting out, witness by witness, what he did, producing documentation relevant to that exercise. Mr Hendy put in a further witness statement in riposte which mainly argued what he saw as the fundamental evidential and logical flaws in the case against him.

As a result of the further submissions of Mr Paulin the criticism of Mr Parsons’ activities that I have to consider contains the following elements:

Before turning to an assessment of the facts it will be useful to deal with the legal principles which I am invited to apply by the parties. The following points arise.

The court can intervene in an employment dispute over dismissal procedures if the facts justify it. In West London Mental Health NHS Trust v Chhabra [2014] 1 All ER 943 there was a disciplinary procedure which was in part similar to that in the present case - an investigating manager who reported to a case manager, with the latter having to decide whether there was enough information to place the case before a disciplinary panel. It was said that there were flaws in the way in which the investigating manager went about his business and the court was invited to intervene to grant an injunction to restrain the continuation of the disciplinary panel’s activities. It was a case of a final injunction at trial, not an interim injunction (or declaration) as in the present case. The Supreme Court (through Lord Hodge SCJ) held that an injunction was appropriate on the facts of that case. It is apparent from his judgment that in that case the terms of the disciplinary procedure had contractual effect (see paragraph 37), and he found that:

“there have been a number of irregularities in the proceedings against Dr Chhabra which cumulatively render the convening of the conduct panel unlawful as a material breach of her contract of employment. I have four concerns about the procedure which the Trust followed.” (para 34).

It is plain that his decision was based on an accumulation of significant, if not serious, defaults:

“I am persuaded that the cumulative effect of those irregularities is that it would be unlawful for the Trust to proceed with the disciplinary procedure and that the court should grant relief. As a general rule it is not appropriate for the courts to intervene to remedy minor irregularities in the course of disciplinary proceedings between employer and employee – its role is not the "micro-management" of such proceedings: Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2010] ICR 101, para 22. Such intervention would produce unnecessary delay and expense. But in this case the irregularities, particularly the first and third, are of a more serious nature. I also bear in mind that any common law damages which Dr Chhabra might obtain if she were to succeed in a claim based on those irregularities after her employment were terminated might be very limited: Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 and GeysvSociété Générale [2013] 1 AC 523, para 73, Lord Wilson. “

The most serious shortcoming was the categorisation of the conduct as “gross misconduct” (see para 40). That was a question of law in that case:

“35.

First, I do not think that the findings of fact and evidence, which Dr Taylor recorded, were capable when taken at their highest of supporting a charge of gross misconduct. Paragraph 13.4.1 of policy D4 speaks of conduct so serious "as to potentially make any further relationship and trust between the Trust and the employee impossible." This language describes conduct which could involve a repudiatory breach of contract: DunnvAAH Ltd [2010] IRLR 709, para 6; Wilson v Racher [1974] ICR 428. There is no material in Dr Taylor's report to support the view that the breaches of confidentiality which she recorded, including the former secretary's allegations, were wilful in the sense that they were deliberate breaches of that duty. In my view they were qualitatively different from a deliberate breach of confidentiality such as speaking to the media about a patient.”

One can therefore take the following principles from this case:

The potential ability to seek an injunction to restrain a procedure being carried out in breach of contract also appears from Edwards v Chesterfield Royal Hospital [2012] 2 All ER 278. That was a case concerning the inter-relationship between the statutory regime of unfair dismissal and the common law regime relating to breaches of contract. At para 44 Lord Dyson SCJ said:

“44.

That is not to say that an employer who starts a disciplinary process in breach of the express terms of the contract of employment is not acting in breach of contract. He plainly is. If that happens, it is open to the employee to seek an injunction to stop the process and/or to seek an appropriate declaration. Miss O'Rourke QC submitted that, if in such a situation there is a breach of contract sufficient to support the grant of an injunction but (for whatever reason) the employee does not obtain an injunction, it is anomalous if the normal common law remedy of damages is in principle not available to him. The short answer to this submission is that an injunction to prevent a threatened unfair dismissal does not cut across the statutory scheme for compensation for unfair dismissal. None of the objections based on the co-existence of inconsistent parallel common law and statutory rights applies. The grant of injunctive or declaratory relief for an actual or threatened breach of contract would not jeopardise the coherence of our employment laws and would not be a recipe for chaos in the way that, as presaged by Lord Millett in Johnson, the recognition of parallel and inconsistent rights to seek compensation for unfair dismissal in the tribunal and damages in the courts would be.”

Although this statement refers to an employer starting a disciplinary process in breach of contract, it must logically apply to one who conducts such a process in breach of contract; indeed, the facts of the case demonstrate that the complaint was of a breach of such a nature.

These cases therefore establish that injunctive relief is theoretically open to Mr Hendy if he can establish a breach of contract, and that therefore a claim for an interim injunction is open to him too.

As the case went on this issue was seen to have less relevance. Mr Paulin originally wished to rely on some sort of fixed obligation to carry out the sort of exercise envisaged by Mr Copple. He based his case on the proposition that once Mr Copple had reached his decision as to what had gone wrong in Mr McAllister’s inquiry then the steps that he said were omitted became steps that Mr Hendy was entitled to have carried out, as a matter of contract - carrying them out had somehow become a contractual term. In order to do that he would have to mount some sort of argument which involved every detailed element of the disciplinary procedures, whether specified in the policy or decided on from time to time in the course of the procedure, becoming part of the contract of employment or having some parallel contractual effect. However, neither his contract of employment nor the disciplinary policy itself contains any express term to that effect though it was a central part of Mr Paulin’s case that the terms of the policy had become part of Mr Hendy’s contract of employment. It was not clear how Mr Paulin’s objective could be achieved, and in the end he abandoned that particular project (correctly, in my view), and founded himself on more general implied obligations in the policy involving fairness and the like, which he said on the facts required that Mr Hendy’s riposte be put to complainants and witnesses.

As I have already recorded, Ms Toney accepted that there was an obligation of good faith operating as between the MoJ and Mr Hendy, and did not in any way claim that her client could take the benefit of acting unfairly, perversely or capriciously, though she disputed the incorporation of the policy into the contract of employment. Since she seemed to be accepting (for the purposes of this application) equivalent implied obligations about operating the policy to those claimed by Mr Paulin, albeit emanating from the contract of employment rather than from the terms of the policy itself, the difference between the parties becomes largely immaterial, and the question becomes one of assessing the fairness, perversity or irrationality of the operation of the process. It therefore becomes of little importance to consider the strength of the case for incorporation of the policy into the contract. However, since some time was spent in addressing it before Mr Paulin refocused his case I shall make some short remarks about it.

Whether or not terms such as these are incorporated into a contract depends on the terms of the two contracts and the other relevant contractual circumstances. In Hussain v Surrey & Sussex Healthcare NHS Trust [2012] Med LR 163 Andrew Smith J cited Hobhouse J in a previous authority:

“It is common ground that the proper approach for determining whether provisions such as those of the Practitioners Disciplinary Procedure have [been] incorporated into the contract of employment is summarised by Hobhouse J in Alexander v Standard Telephones & Cables Ltd (No 2), [1991] IRLR 286, 292-3 as follows:

"The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn."

The starting point must therefore be the words of the documents themselves. I was not shown the terms of the contract of employment, but the wording of the policy contains words which positively have to be overcome by Mr Hendy if he is to succeed on the point. Almost at the beginning of the document the following words appear (I have already set them out above):

“This policy does not form part of your contract of employment. However, you are bound by the provisions of this policy which may be amended from time to time.”

The opening words of that sentence are plain. They cannot simply be ignored unless there are other circumstances which would suggest that they do not represent the intentions of the parties. The only material for that is the second sentence, which states that the employee is bound. It might be said that the employee cannot be bound unless there is a contract, and if there is a contract both sides should be bound (although Mr Paulin did not put it that way).

Looking at the document as a whole I do not consider that the terms of the policy itself have a contractual effect binding the employer to carry out particular acts under it. The first sentence of the paragraph that I have just quoted prevents the incorporation of the terms into the contract of employment, contrary to Mr Hendy’s original primary case. The second sentence suggests some sort of binding effect, which in turn would require some sort of contract. However, in my view, taken in context, they do not have the effect of creating a full bilateral contract. First, only the employee is expressed as being bound. Second, there are very few “obligations” on the employee in the document to which that can apply. There are indications of what will be expected of the employee in terms of co-operation, and there is a section describing and categorising qualities of misconduct and giving examples which would be capable of having a “binding” effect on the employee in that it might be said that there is an attempt to prevent the employee from re-categorising conduct, but that is about it. What I consider the second of those sentences to be doing is indicating what will be expected of the employee in the process of disciplinary proceedings, but little more than that. They are not capable of overriding the plain words of the first sentence.

Although the words of the first sentence prevent the terms being incorporated into the contract of employment they are also a very strong indication that the policy does not take effect as some sort of collateral contract either. The clear intent is that they will not be contractually binding. That view is clearly supported by the rest of the content of the document. The sentence relied on by Mr Paulin indicates that the policy might change. A unilateral right of variation might be a contractual term, but this is obviously intended to be a flexible living document which does not sit easily with its also being a binding contract so far as the employer is concerned. The observation of Hobhouse J as to the aptness of some terms being incorporated is particularly relevant here. I have not set out the full terms of the policy but it contains many generalised statements of “guidance” and the like given to those running the process or conducting the inquiry, including a series of “Top Tips”. They are completely inappropriate as contractual terms. Of course, as Hobhouse J allowed, there might be a process of inclusion and exclusion of some terms, (and that is what Andrew Smith J found in his case) depending on their aptness for inclusion, but the presence of so many inapt terms creates a picture of a non-binding nature so far as the policy is concerned. Furthermore, the words about flexibility which I have set out above ("Each disciplinary process will be different due to variations in the form of the misconduct, its severity, the number of people involved, the employee's disciplinary history and mitigating factors. However, a disciplinary process normally follows the steps:”) point against the rigidity which a binding contract would bring.

All in all I think that it is clear, even at this stage in the proceedings, that the terms of the policy document were not incorporated into the contract of employment, and that its provisions were not, as such, part of some sort of collateral contract either. That is not to say that there are no contractual links. Ms Toney’s acceptance of obligations of good faith and fairness in the operation of the policy acknowledges that, but it does not require the incorporation of terms into some sort of contract.

I shall therefore consider the case on the footing that the claim is couched in an obligation to operate the policy fairly and without perversity. In the interests of brevity I shall describe this duty hereafter as a duty of fairness.

In this context the nature of the exercise carried out by the investigating officer has to be borne in mind. The disciplinary process does not involve a disciplinary hearing with a fact-finding element, in the sense of that being the stage at which conflicts of fact are tested. Questions of fact are to be judged by the investigating officer. It is he/she who has to try to understand what happened and present the facts to the managing officer. The duty of fairness requires that that be carried out in a way which is fair to the employee. That was doubtless a point which underpinned Mr Copple’s decision.

I assume for present purposes that there is a serious question to be tried as to whether on the facts of this case the fair operation of the policy required that Mr Hendy’s case should be put to the complainants and witnesses. I do so not on the footing that it became a contractual obligation as a result of Mr Copple’s decision (Mr Paulin’s first case) - I do not think it is arguable that it did - but because it is at least arguable that the nature of the inquiry in this case required that it be done in fulfilment of the duty of fairness, and Ms Toney did not seek to submit otherwise. Whether or not that is actually the right analysis of the purpose of putting a case to a witness in cases like this is not something which I have to determine. For the purposes of this application I shall assume Mr Copple’s view of the need for the exercise and its purpose, that is to say that it was so that the complainants’/witnesses’ reactions and responses could be judged, and thus their credibility, as part of the process of the fact finding exercise. The extent to which that was required, however, is not pre-ordained. That would depend on the allegations, their relevance, and the other circumstances surrounding the actual exercise of putting the points to witnesses. It is not an absolute obligation in the sense that all of Mr Hendy’s ripostes on which they might possibly have a comment should be put to each of them.

Mr Paulin had two main points on this. First, where there was an attempt to put his case, it was not put sufficiently; and second that not enough matters were put. So far as the second of those points is concerned, I have adverted above to various complaints made against Mr Hendy but which were not pursued beyond the first investigation because there was insufficient material for a finding or they were more appropriately the subject of a different inquiry, if at all. Mr Hendy’s case was that there was a form of malicious conspiracy against him, and that a proper investigation of that case required that all complaints made by complainants, whether ultimately pursued against him or not, be put to relevant witnesses and complainants in order to be able to judge whether there was such a conspiracy. He complained that that had not been done.

Ms Toney submitted that this point clearly failed on the facts. One could see what was done, and what was done was sufficient to achieve the objective of putting points to the complainants for credibility purposes.

In making his points about the need, and then the failure, to put matters to witnesses Mr Paulin pointed to Mr Parsons’ letter of 22nd August 2013 (see above) in which he indicated that it did not seem necessary to put to complainants and witnesses matters which were not going to be taken forward as instances of gross misconduct. He said that if an allegation of conspiracy is being investigated then all matters ought to be put to them. I agree it might be appropriate to test a “conspiracy” by putting matters going beyond complaints that were upheld and pursued, though ultimately that would depend on the facts. Having said that, the letter of 22nd August 2013 represented what was merely a view at that time. What was important was what actually happened, not what Mr Parsons was suggesting should happen in the future.

However, the limit of this whole of this exercise has to be considered. It is not, in my view, arguable that each and every part of Mr Hendy’s case, including his reasoning on credibility, needs to be put to each and every relevant witness. It is not a mechanical process. What needs to be put is enough to enable a reasonable view to be reached. What qualifies for this purpose will be a matter for the reasonable judgment of the investigator, and then for the determining officer who has to consider what steps to take on the investigator’s report.

I therefore turn to the evidence of what Mr Parsons did. He could not put to the witnesses all of Mr Hendy’s material - it was for practical purposes too substantial for that (the 130 pages plus 679 pages of evidence provided to Mr McAllister) and it would be unrealistic and unnecessary for him to do so. He does record in his report, however, that he put Mr Hendy’s “submissions” about their credibility. His latest evidence records more clearly what he did. Although by the time of the second hearing Mr Paulin had reduced his submissions to a failure to put material to the complainants (and not, apparently, the other witnesses), it is of some relevance to see what else Mr Parsons did in relation to other witnesses, because that is capable of going to the overall thoroughness of the exercise he conducted.

So far as Mr Parsons’ evidence is concerned it shows the following.

He sought to get an opportunity to put Mr Hendy’s case to the complainant MMJ. However, at a meeting she claimed to be too upset to read anything further that Mr Hendy had written about her. She was apparently visibly distressed and claimed that she had to consider her mental health and her family. Mr Parsons pointed out the inferences that Mr Hendy would doubtless seek to draw if she refused to participate further. She then dealt with one specific point in an email (a point which Mr Parsons had noticed, not a riposte of Mr Hendy) and ultimately Mr Parsons was able to meet her to put other questions to her. She declined to receive written questions in advance. He prepared a written note of the meeting which shows that he put to her 8 major points that Mr Hendy had raised. Two or three of them related to matters which were not taken forward from Mr McAllister’s report. Mr Parsons’ document records the thrust of her replies. It does appear that Mr Parsons put summaries of what he saw as the main points of Mr Hendy’s riposte to MMJ; he did not put to her a lot of the challenges to her evidence in which Mr Hendy sought to present logical challenges to her account and other detailed challenges.

Mr Parsons contacted the other complainant (LA) and this time he sent her the pages from Mr Hendy’s response document which related to her - 40 pages of closely typed submissions. In due course he arranged to meet her, and on that occasion he sent her an Appendix of two general and five specific points that he thought it would be helpful to discuss with her. Some of the specific issues raised points that Mr McAllister’s report recommended should not be taken forward as gross misconduct (indications of casual racism). He then met her and discussed the issues. His note records her response to various issues put to her (not confined to the terms of the issues flagged up in advance, but generally related to them). He asked her about collusion, delays in making one particular allegation, the absence of prior complaints (which it was said might have been expected if Mr Hendy’s conduct was as she said it was), inconsistently friendly emails and other matters, and other points. All these were matters raised by Mr Hendy. His questions touched on the matters of alleged casual racism which had not been taken further as gross misconduct previously. His note also demonstrates a discussion of something that Mr Hendy regarded as important, namely whether another employee, a Ms Said, had ever indicated an intention to join in the complaint. Ms Said said she never did; the complainants said she did, and then withdrew.

Mr Parsons contacted other witnesses who had given material to Mr McAllister. So far as the former category was concerned, Mr Parsons sent them copies of what Mr Hendy had said about their version of events, and they provided responses. Mr Paulin did not seem to take issue with this part of the exercise, and it is important because it shows the degree of conscientiousness with which Mr Parsons was going about his activities and it demonstrates the overall information available to him at the end of his investigation. One of them simply indicated that she stood by her former evidence and declined to provide any detailed response, commenting how “awful it was to work in that atmosphere”. She then added an email which said she had not collaborated with anyone over her statement. A second witness also essentially confirmed, with little more, what she had said before. A third provided a more detailed rebuttal, none of it helpful to or complimentary of Mr Hendy.

Mr Parsons went further and contacted three other witnesses at the behest of Mr Hendy - one of them a lawyer in the Court of Appeal office, and two of them Court of Appeal judges. They provided material which was generally supportive of Mr Hendy, though none of them could comment on the particular matters which underpinned the disciplinary proceedings. Mr Parsons’ report shows that he took this material into account so far as it might help his task. In addition, he contacted Ms Said for a supplementary witness statement, which she provided. This took place after he had met with the two complainants, so Ms Said was able to comment on what they had said about her previous evidence.

I shall comment further on this exercise when I consider Mr Hendy’s current complaints in a little more detail, but first I need to deal with his report. It runs to some 51 pages. He sets out his terms of reference and the need to investigate the credibility of the complainants (and other witnesses) and the need to put to others the claims of Mr Hendy which are indicative of dishonesty on the part of others. He then records MMJ’s initial refusal to engage, but also her subsequent change of heart. At paragraph 5.7 he records that he saw no reason to doubt the sincerity of MMJ’s reasons for not participating more fully. The other relevant parts were as follows:

There is a lot more detail in Mr Parsons’ report. I have set out the main points which are germane to the questions that I have to consider in order to demonstrate the extent to which he records himself as having put Mr Hendy’s case to complainants (and witnesses) and what his findings were having carried out that exercise.

Against that material I now turn to consider Mr Hendy’s complaints about the procedure. His first complaint is that Mr Parsons was guilty of a “wholesale failure to put [Mr Hendy’s] rebuttal to the complainants”. He points to seven matters which were considered by Mr McAllister, but on which he made no finding or, in the case of one (poor performance) he recommended that, if concerns existed, it be dealt with under a different policy. Mr Paulin’s case is that the failure to put Mr Hendy’s case on these matters to the complainants made the procedure unfair and a breach of contract. The professional status of the complainants (they were both solicitors) made it even more vital for there to have been a sufficient inquiry of them. They were not vulnerable people who needed to be treated very gently, so the matters should have been put to them. The fact that they may have appeared to be upset (in the case of MMJ) was no reason not to pursue the point. Indeed, Mr Paulin submitted that it was particularly significant that the complainants were solicitors because there was a special duty on them to behave with integrity, and a special need for care and precision in the investigation. If the reason for not putting these matters to the complainants was because of the upset it would cause them then he was being too sensitive to them and too unfair to Mr Hendy. There was a legal obligation to put Mr Hendy’s defence on all matters to the accusers.

Mr Paulin placed particular reliance on certain statements in A v B [2003] IRLR 405. That was a case about a disciplinary procedure, in which a failure to investigate or to produce material to the employee meant that exculpatory material was not considered or made available to the employee. As a result of that, and of other failures, the dismissal was held to be unfair. Mr Paulin pointed to passages in the judgment of Elias J in which the judge pointed out the unfairness of the disciplinary conduct.

The shortcomings in that case are not shortcomings which arise in the present case. The complaint made by Mr Hendy is not that there was a failure to find or disclose exculpatory material. It is a failure to put Mr Hendy’s case on the facts, which is different. I did not find the passages in that case dealing with the particular faults helpful or relevant. However, Mr Paulin is entitled to rely on statements about the care required where the employee risks losing his job and reputation:

“63.

We accept the observations of Mr Pepperall, for the Respondent, that the standard of reasonableness required will always be high where the employee faces loss of his employment. The wider effect upon future employment, and the fact that charges which are criminal in nature have been made, all reinforce the need for a careful and conscientious enquiry but in practice they will not be likely to alter that standard.”

I accept that reasoning. Mr Paulin went on to submit that the case demonstrated that there was little excuse for not putting material to a witness who might be upset:

“75.

Particular care is necessary in testing and weighing the veracity of her evidence. That task was made more difficult by the fact that the local authority has a policy (for perfectly understandable reasons) that children in her situation should not be questioned in the disciplinary process.

76.

We recognise that there is a real dilemma for an employer in a situation of this kind. On the one hand it is plainly highly undesirable to subject a young girl, who may already have been subject to abuse, to questioning from the defendant which could cause yet further distress and even damage to health. On the other hand, the consequences for the defendant are extremely serious and there is no doubt that the difficulty he faces in convincing a disciplinary body that the allegations are untrue is compounded where he is not able directly to face and challenge the complainant.”

I accept that this reflects the need to achieve a balance, but I do not accept that it necessarily requires every point to be put to a complainant who exhibits what is thought to be genuine distress. The important point is what is reasonable:

“80.

Of course the touchstone is always reasonableness. The recognition that the standard of reasonableness is going to depend upon the state of the case against an employee is found in the decision of the Employment Appeal Tribunal, Wood J giving the judgment, in the case of ILEA & Gravit [1988] IRLR 497. In the course of his decision Wood J said this:

"…in one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end so the amount of inquiry and investigation, including questioning of the employee which may be required, is likely to increase."

In the present case it is indeed the case that Mr Parsons did not put the seven matters relied on by Mr Hendy to the complainants. He focused more on matters in relation to which misconduct had been found. However, that is not, by itself and without more, something which renders the procedure unfair. It is clear that Mr Copple anticipated that Mr Hendy’s case be put to the complainants (and witnesses) but, as I have already observed, this was not to be a mechanical exercise. It had a purpose, namely to test the credibility of the complainants. Mr Parsons had to do enough to achieve that end. That did not necessarily require that Mr Hendy’s case on all allegations, whether found against him or not, needed to be put. What needed to be put (on the assumption that Mr Copple is right in saying that credibility needs to be tested in this way) is enough for a view to be taken on credibility. That is a matter of judgment, within the limits of reasonableness. If the investigator thinks that credibility is tested by putting the subject of adverse findings to the complainants, and by raising other matters with other witnesses, then the objective of testing credibility has, at least ostensibly, been achieved. The process is not akin to a major trial, at which the whole factual case of one party is (by and large) expected to be put to the other. An investigator cannot be expected to do that, and it is not necessary or reasonable to require it. The context of the investigation is an employment situation, not a trial. Nor should the investigator necessarily ignore the possibility of causing upset to the complainants. The extent to which he has to go will depend on the circumstances. Of course, if the risk of apparent upset leaves him in a position in which credibility cannot be tested then that will be an important factor in the investigator’s recommendations, and will have to be taken into account at the subsequent stages. It may even result in his making a determination against the complainant’s case. But there will be other circumstances where enough can be done stopping short of risking unreasonable upset to allow a view to be taken (either way). Even allowing for the seriousness of this matter in terms of its consequences for Mr Hendy (which I acknowledge) it is not necessary to go as far as Mr Paulin suggested in order to achieve the correct standard of fairness. I shall return to whether what Mr Parsons did (or did not do) in this context was arguably unfair when I consider the overall picture below.

Mr Paulin’s next point was that there was a failure to put certain particular matters properly to the complainants. He raised four points:

Having set out the case against the MoJ, and some of the evidence, it is now necessary to consider whether there is serious question to be tried in relation to fairness. I take into account the following factors:

Mr Parsons’ report inevitably starts with Mr McAllister’s exercise and findings. He was not told to start the exercise again, and it has not been suggested at this hearing that he should have done that. It is quite plain from his report that he was aware of the need to assess the credibility of the complainants. Time and again he records that he found the complainants’ responses to be credible. He was plainly aware of what he had to do, and expresses his report in such a way as makes it clear that he believed he had done it. The question really becomes whether he had got the material to reach his conclusions bearing in mind the exercise that he conducted and what was required of him under Mr Copple’s determination.

I have drawn attention to the respects in which Mr Parsons did not put everything that Mr Hendy had said to the complainants. It might be said that in those respects he could have gone a bit further, and it may be that another investigator would have done so. But I return to the fact that what was required was that he should do enough to be able to test the complainants’ credibility. As well as testing it by reference to the complainants themselves, Mr Parsons went further and considered the facts in the light of the further responses of other witnesses. He also took into account the pro-Hendy views of the witnesses suggested by Mr Hendy. The question at this stage of the reasoning is whether or not there is a serious question to be tried as to the unfairness of the procedure in the circumstances, sufficient to make the unfairness a breach of contract. I have come to the conclusion that I do not think there is a serious question to be tried in relation to that particular question. Looking at the exercise overall, and bearing in mind the discretion and judgment that must be open to the investigating officer, I think that it is sufficiently plain (on the evidence before me) that Mr Parsons’ procedures were sufficiently fair to prevent there being an arguable breach of contract in that respect.

I should make it clear what I am and am not finding in this respect. There are many potential unfairnesses, of varying degrees, that might occur in a disciplinary process. Not all of them would justify a final injunction of the kind granted in Chhabra and contemplated in Edwards v Chesterfield, though they might be unfairnesses that the employee could rely on at his/her disciplinary hearing or on an appeal. In order to succeed on this application Mr Hendy has to establish a serious question to be tried as to whether there was an unfairness of sufficient seriousness to justify prohibiting progress with the whole proceedings. I have come to the conclusion that he has not established that. He has demonstrated that some of the detail of his case was not put to the complainants, and that one of the complainants put serious obstacles in the way of that exercise. However, it is apparent from Mr Parsons’ report that he felt himself able to express a view of the credibility of the complainants on the basis of what he did, and it is apparent that he carried out further credibility tests by considering material from other witnesses. Mr Hendy did not have an absolute right to have all his detailed case put to all the witnesses. He had a right to a fair process which enabled him to put his own case (which he did) and which enabled his case to be tested against the material from the complainants and other witnesses. If there was any degree of unfairness in what happened, then it was not of such a degree as to taint the whole process to such an extent as to require it (even arguably) to be brought to a halt.

That is enough to decide this application, but it seems to me that another point is in play in relation to the sort of relief claimed in this action. The authorities make it clear that the court can intervene in an employment dispute resolution procedure where there is sufficient unfairness. However, an employee cannot assume that it will always intervene whenever there is unfairness. If the procedure is capable of ironing out the unfairness then the court may well leave it to do so. As appears from the above authorities, the court will not micro-manage employment disputes. Because of the delays which are capable of arising if interim relief is to be given, this point becomes a factor in considering the desirability of giving interim relief. The overall balance of convenience may well favour letting the procedure run its course if the unfairness lacks enough severity. In the present case, for example, there is to be a disciplinary hearing and then there is a possible appeal. Those are stages which are capable of considering unfairness, even if there is a technical breach of contract. Then at the end of the road there is the availability of an unfair dismissal claim in the Employment Tribunal. While this may not investigate fully the merits of the reasons for dismissal, it would certainly be able to consider the merits of the operation of the procedure (see, for example, A v B, above).

In the present case I have already determined that there is not a sufficiently serious issue to be tried, to get over the first hurdle in American Cyanamid. Had I been satisfied that it was arguable that Mr Parsons had not put Mr Hendy’s case to the complainants in sufficient detail, then bearing in mind the extent to which he did put it, and the other steps that he took to consider credibility, I would nonetheless have come to the conclusion that the shortcomings were not sufficiently serious to remove this case from the micro-managing to the sort of case where the court would intervene.

The American Cyanamid test requires me to consider the adequacy of damages and whether Mr Hendy is good on the cross-undertaking in damages. Although I have held that the reasoning does not get that far, I will nonetheless express my views on these points.

So far as the adequacy of damages is concerned, the question is not quite the normal one. If an injunction is not granted the procedure will run its course. If it results in a dismissal, Mr Hendy has a right to claim that his dismissal was unfair as a result of an unfair procedure. Nothing that I have said in this judgment forecloses those arguments. I have referred to the limits of this judgment above. If he is right then he will get compensation. Mr Hendy claims that that possible remedy is not sufficient. Mr Paulin points out that the tribunal will not substitute its own views of the decision to dismiss as such. Accordingly Mr Hendy will not get a decision as to whether or not he did the acts complained of, and whether or not they were serious enough to amount to gross misconduct. He will therefore not be properly vindicated in the tribunal, and his reputation will remain damaged. Furthermore, there is a cap on the compensation which might mean that Mr Hendy is insufficiently compensated. That means, Mr Paulin submits, that the equivalent of damages in this case would not be an adequate remedy.

I assume for these purposes that if the dismissal is left unchallenged Mr Hendy risks a serious loss of reputation. The rest of what Mr Paulin submitted is true to a degree but it is not necessarily the case that Mr Hendy will not be able to obtain vindication in the tribunal. If the point in issue is the fairness or otherwise of the procedure, he will have a decision on that. If he is found to have been unfairly dismissed because of an unfair procedure then he will have a large degree of vindication. He would be able to claim, rightly, that all that was said about him was not properly established. That will, to a large degree, restore the damage to his reputation. I am not satisfied that the amount of compensation available will mean that he is not adequately compensated - I was not addressed on that.

It therefore seems to me that on the facts of this case it could be said that Mr Hendy’s alternative claim is an adequate one in the circumstances. It is true that the authorities recognise that damage to reputation is a reason for intervention, but the ones that I was shown are clearer cases than the case before me.

So far as the cross-undertaking in damages is concerned, Mr Hendy is not clearly good on the cross-undertaking. If an injunction were granted he would remain employed on full pay for a year or more while the action is tried out. His salary is over £65,000 per annum. If he were then to lose the case he would have been paid for over a year when he ought not to have been, and ought to reimburse the department for that overpayment. He put in evidence of his means which demonstrated that he does not have the means to repay even half that sum. He is therefore not good on the cross-undertaking. However, had I been satisfied that the factual situation were serious enough to require a declaration I would not have considered the sums involved on the cross-undertaking to stand in the way of an injunction if that were the only point against it.

Ms Toney relies on delay by Mr Hendy as disentitling him to his relief. He was told as long ago as 5th December 2013 that the matter would go to a disciplinary hearing which was scheduled for 13th December 2013. The disciplinary hearing for December was apparently adjourned, and a further date of 4th February 2014 was fixed. Mr Hendy wrote on 29th January 2014 to say that unless this one was adjourned too then he would apply for an urgent interim injunction. As it happened, on the same day the Permanent Under Secretary wrote to inform Mr Hendy that it would not be appropriate to intervene or comment because the disciplinary process was still in train. In another letter on the same date Mr Goozée informed Mr Hendy that he was considering the material that Mr Hendy had passed to the Permanent Under Secretary and that he would adjourn the 4th February date and refix it in due course. In the meantime he was arranging for a referral of Mr Hendy to Occupational Health to determine his fitness to attend a disciplinary hearing. Mr Hendy responded on 7th February 2014, agreeing to the referral (and indeed expressing some ironic pleasure that the department was taking an interest in him), maintaining his stance that there had been repudiatory breaches and giving dates in February to avoid (it is not clear whether this was for the OH assessment or for the hearing). Mr Hendy did not, in this letter, indicate that he would mount a legal challenge to the disciplinary hearing in the form of an injunction. By a letter of 13th February 2014 Mr Goozée re-fixed the disciplinary hearing for 25th March 2014. The OH consultant reported on 27th February that Mr Hendy was fit to attend a hearing, proposing some safeguards to protect his “fragile” state and that point was followed up in a further letter from Mr Goozée on 7th March 2014. It was the not until 24th March 2014that Mr Hendy made his application, having served a letter before action on 12th March 2014.

It is those facts which are said by Ms Toney to be delay which goes against the grant of relief. She says that it amounts to a delay of almost 7 months (from December 2013) which is too long. That is, of course, an overstatement. The period from mid-December (when Mr Hendy got the Parsons report) and 24th March 2014, which is when he launched his application, is only just over 3 months, though there was a delay of another 3 months before Mr Hendy’s present claim emerged as a point in the case. I think that it is the first 3 month period which is significant for delay purposes, though it is also significant that the injunction was sought on the eve of the disciplinary hearing,

Ms Toney pointed to the case of Makhdum [2012] EWHC 4015 (QB) in which an employee waited until 2 weeks after the first hearing of disciplinary proceedings to start proceedings and claim an injunction when he had received the report of which he complained some 3 months before, and other matters of which he complained were known to him closer to the hearing date. Beatson J held that this sort of delay was too long and the claimant had not acted sufficiently promptly. Other than emphasising the need for promptness I do not think that that case is of much help to Ms Toney (nor is it much of a hindrance). Beatson J demonstrated that some of the matters of complaint, or the background, had been known previous to the report, and that was obviously significant. It was a case on its own facts and they are not sufficiently similar to this case to be of much help.

Ms Toney also relied on Everett v University of East London [2009] EWCA Civ 402, which she said demonstrated that delay by itself, without prejudice, could disqualify an applicant from obtaining an interim injunction. I agree that that seems to be implicit in that case. It is also clear enough that McCombe J at first instance, and the two members of the Court of Appeal, expected prompt action from an employee who was challenging the disciplinary process. There are good reasons for this, and they are demonstrated by this case. The court is being asked to disrupt an agreed process, and if that is to be done it should be done at the first sensible opportunity. Otherwise there are very undesirable delays in bringing to an end something which is disruptive to the employer’s business and disruptive to the life of the employee. If the employee is suspended on full pay, as in the present case, the pay continues to be paid to someone who is not providing any services, and the date (if any) on which the employer knows he has to set about getting a replacement for the employee is postponed. That matters.

Mr Paulin submitted that delay would be of less significance where the defendant’s conduct has not changed as a result, and cited Radley Gowns Ltd v Costas Spyrou [1975] FSR 455 and Handi-Craft Co v B Free World Ltd. He pointed out that service of a claim form at a prior stage would have made no difference to the intention of the MoJ to continue with the disciplinary process. Both halves of that proposition are true, but they do not have much significance on the facts of this case. Radley Gowns shows that delay by itself can be so unreasonable as to lead to a refusal of injunctive relief.

“Had there been any evidence that the defendant had materially changed his position for the worse on the strength of it, it might well have proved fateful. I find no evidence of this, and on the whole I do not think that the delay of two months by itself is of such a serious order that I ought to refuse the plaintiffs the relief which they seek.” (p469, per Oliver J)

The emphasised words make good that point. In the present case what Mr Hendy did was delay for three months before applying for an injunction (without issuing a claim form), and he had even positively indicated that he would participate in the disciplinary process by agreeing to, and then participating in, the occupational health assessment of his ability to participate. It was only when that assessment had reached its conclusion, and on the eve of the hearing, that he applied for an injunction. He could have done that at any time in the preceding three months, and in this employment context that is, in my view, unreasonable and too long. No good explanation has been offered for this period of delay. It is, of course, the case that Mr Hendy launched his attempt at an interim appeal within this period, but that appeal was not provided for by the policy, as he ought to have appreciated. A misguided attempt at an erroneous procedure is not, in my view, a justification for delay that would otherwise be unreasonable, even if it was an attempt to avoid court proceedings (as Mr Paulin suggested in argument that it was).

So far as prejudice from delay is concerned, I do not need to make a finding about that, and there was no evidence focused directly on it. I would merely observe that there was technical prejudice in the continued payment of Mr Hendy’s salary and presumably some administrative uncertainty in the running of his office (which was not explicitly dealt with in the evidence). I do not know whether that prejudice would have been sufficient to transform less serious delay into relevantly significant delay, but I do not need to make any determination about that.

Mr Paulin also submitted that delay might be excused where the chances of succeeding in the action are high and pointed to Cavendish House (Cheltenham) v Cavendish Woodhouse Ltd [1970] RPC 234. It is not clear that this authority bears out Mr Paulin’s proposition, but in any event Mr Hendy does not have a strong case, in my view, if he has one at all (see above), so the point does not arise.

I therefore find, insofar as it is relevant, that Mr Hendy’s delay in applying for an injunction is sufficient in amount to disqualify him from obtaining an interim injunction (declaration) in this case if he would otherwise have been entitled to one.

Although Mr Hendy’s application before me centred on an alleged failure to put his case to witnesses in order to assess their credibility, other points were mentioned from time to time, and it is right I should deal with a couple of them briefly.

In the circumstances, therefore, I find that Mr Hendy’s application for an interim injunction restraining the pursuit of his disciplinary process fails and ought to be dismissed.