Sarker v Worcestershire Acute Hospitals NHS Trust

This is an application by the Claimant for an injunction to restrain the Defendant from continuing with a disciplinary hearing against him. The disciplinary hearing began on 27^th January 2015. The application before me was heard on 28^th January 2015. Although formally ex parte, the Defendant was notified of the application and was represented before me. Towards the end of the hearing before me, I was told that the evidence before the Disciplinary Panel had almost concluded but closing submissions had still to take place. In order that the application should not become academic, Mr Moretto on the Defendant’s behalf undertook that the Trust would not make its closing submissions until further order from the Court. I also made an order that the Disciplinary Panel should not give its decision until further order from the Court. These were measures simply to hold the ring until I was in a position to give my judgment (which I reserved).

The Claimant is a consultant in general and colorectal surgery. He has been employed by the Defendant in that capacity since August 2011. Concerns about his clinical practice began to emerge in early 2012. These were considered in a desk top review of a sample of his clinical work by the Royal College of Surgeons. They expressed serious concerns. The Claimant was suspended on full pay by the Defendant on 12^th October 2012 and the Defendant commissioned an investigation by Dr Julian Berlet. The Claimant was interviewed on 4 occasions. Each time he was also accompanied by a legal representative. Dr Berlet reported in July 2014.

On 30^th October 2014 the Defendant provided the Claimant with a copy of Dr Berlet’s report (apart from the annexes which followed on 5^th November 2014). The Defendant also notified the Claimant that it considered that there was a prima facie case of gross misconduct by him and a Disciplinary Panel would be constituted. It supplied draft charges. At that stage, the Claimant was told, it was proposed the hearing before the panel would take place 3^rd -5^th December 2014. On 5^th November 2014 Radcliffes Le Brasseur (‘RLB’), the Claimant’s solicitors, asked that the hearing take place on 4^th, 5^th and 9^th December 2014. There was further correspondence between the parties as to the precise dates in December 2014 that the hearing should take place, but on 17^th November 2014 RLB were told that the availability of panel members and witnesses meant that the hearing would have to be put off until 27^th-29^th January 2015.

The Defendant’s Disciplinary Policy, Procedure and Guidance paragraph 7.10.5 provides that the employee and their representative must be provided with the ‘management case’ which sets out the precise nature of the allegation(s), copies of all written documentation which will be relied upon at the hearing, the date, time and venue of the hearing, the name and designation of the Panel members, the name of the Trust’s representative, the name of the investigating manager who would be attending as a witness and the names of any other witnesses who would be called. The management case had to be supplied ‘10 working days prior to a disciplinary hearing’ according to paragraph 7.2.2 of the Policy or ‘at least 10 working days prior to the hearing [emphasis in the original]’ according to paragraph 7.10.5. In this case the Trust provided its management case on Monday 12^th January 2015. Since the hearing was due to start on 27^th January 2015, this was 12 working days before the hearing was due to commence.

The charges listed in the management case were identical to the draft charges which had been served at the end of October 2014. In summary, they alleged that the Claimant had:

In December 2014 RLB became concerned about the Claimant’s use of language. An arrangement was made for him to be assessed by Ms Arlene Wake, a specialist teacher working at the Canterbury Dyslexia Centre. In a report dated 13^th January 2015 she diagnosed the Claimant as suffering from dyslexia. She made a number of recommendations for adjustments which might be made in his workplace. It seems that the Claimant dealt with Ms Wake directly. In her letter of 22^nd January 2015 she says,

“Mr Sarker had explained that he was applying for a new job and that he wished to have a better understanding of the difficulties he experiences in advance of this. I had no knowledge of the disciplinary investigation by Mr Sarker’s employers and/or the possible legal implications of the assessment or report.”

RLB were provided with a copy of the report by the Claimant on Friday 16^th January 2015. On Monday 19^th January 2015 they wrote to the Defendant asking that the hearing should be adjourned. Setting aside the matters on which the Claimant no longer relies, his solicitors argued that it had taken the Trust 27 months to carry out its investigations, but the Claimant was being given only 12 working days from provision of the management case to respond. That, it was said, was insufficient. One of the reports was from an expert. It was not possible for the Claimant to instruct an expert in the time available. The Trust proposed to call only 3 witnesses, but hearsay evidence was provided by many others and the Claimant was likely to want some of them to give live evidence. The Claimant’s own witness statement was not completed. The Claimant and his representatives had not had time to investigate a large quantity of unused material. RLB also provided a copy of Ms Wake’s report. They argued the diagnosis of dyslexia was likely to be relevant directly to some of the charges, but also material to the adjustments which should be made in the conduct of the disciplinary proceedings.

Capsticks on behalf of the Trust replied the following day. They gave detailed reasons for opposing the request for an adjournment of the hearing. They concluded that the points made in the letter could be raised with the panel at the opening of the hearing on 27^th January 2015.

On 27^th January 2015 the Panel was presented with skeleton arguments on behalf of the Claimant and the Defendant on the question as to whether the hearing should be adjourned. These were supplemented by oral submissions. For understandable reasons there is not a transcript of its decision, but from the notes made by both sets of solicitors, it seems that in summary the Panel reasoned:

Following this decision, the Panel was invited by the Claimant to adjourn for a shorter period to allow him to apply for relief in the High Court. The Defendant opposed this request. The Panel took independent legal advice and decided that the hearing should continue. At this point the Claimant and his legal team withdrew from the process and took no further part in the proceedings.

The well known tests in American Cyanamid Co v Ethicon Ltd [1975] AC 396 are the starting point for considering how the Court should decide whether an interim injunction should be granted. The Court asks, not whether the Claimant is more likely than not to succeed at trial but considers just whether the claimant raises a serious question to be tried. If he does, the Court has to consider whether damages would be an adequate remedy for the Claimant if he were to win at trial. If they would not, the Court must ask whether the Defendant could be adequately compensated by the Claimant’s undertaking as to damages if it should succeed at trial. If money could not adequately compensate either party then the Court has to consider the balance of convenience.

‘A serious issue to be tried’ is a modest threshold test. There is ample authority for the proposition that it is too modest if the grant of the interim injunction would effectively give the Claimant all that he seeks by the action. In his Claim Form, the Claimant seeks an injunction to prevent the disciplinary proceedings continuing until at least 2^nd March 2015. Mr Barr QC on the Claimant’s behalf argues that, if he was successful today, he would be granted an injunction for a shorter period. Since this is formally an ex parte application, relief would only be given until a return date in a week or so time. Mr Moretto, says that is not so. If the injunction is granted, even for a week or so, in practical terms it will be impossible for the hearing to resume before the beginning of March at the earliest. Accordingly, in substance, this application will dispose of the Claimant’s claim. I should therefore apply a higher test than in American Cyanamid.

I accept Mr Moretto’s submissions on this point. I will still bear in mind that the evidence is at an early stage, but, as Staughton LJ said in Lansing Linde Ltd v Kerr 1991] 1 WLR 251 at 258, there must in such circumstances be some assessment of the Claimant’s prospects of success over and above the modest ‘serious issue to be tried’ threshold in American Cyanamid.

Mr Moretto did not dispute (at least not for the purposes of the present application) that the Defendant was under a contractual obligation to follow the terms of its Disciplinary Policy. This expressly provided that the management case should be supplied at least 10 working days prior to the hearing. There is no dispute on the Claimant’s side that the management case had been provided more than 10 working days in advance of the hearing. Mr Barr argues, though, that the use of term ‘at least 10 working days’ in paragraph 7.10.5 shows that there may be occasions when they should be provided further in advance of the hearing. He submits that this may be necessary in order for the Panel to be fair to the employee. He points out that the first ‘General Principle’ identified in paragraph 2.1 of the Policy is ‘Fairness’. It says ‘the application of this procedure will be consistent, fair, prompt (within timescales defined in this policy), impartial, reasonable and applied without discrimination.’

Fairness, he submits, required the Trust to give the Claimant more than 10 days in this case. As RLB had noted in their letter of 19^th January 2015, the Trust had taken over 27 months to carry out their investigation. This contrasted with the 4 weeks which an investigation was normally expected to take (see paragraph 7.9.3 of the Policy). This showed that the present situation was abnormal and it was unfair to give the Claimant only 2 days more than the bare minimum of notice required in standard disciplinary cases. It was right that the Claimant’s advisers had had the Berlet report and its appendices since the beginning of November 2014. They had also then been given draft charges, but these were only in draft. There was a limit to how much the Claimant could prepare before he and his advisers knew precisely how the Trust was proposing to put its case. Mr Barr argued that, since the final charges and the final way in which the Trust was going to formulate its case had been disclosed so close to the hearing, fairness required the Panel to adjourn the hearing.

Fairness, he submitted, also mandated an adjournment because of the recent diagnosis of the Claimant’s dyslexia. Ms Wake’s report confirmed that the Claimant did suffer from this condition, but she was not able to provide evidence for the purpose of the disciplinary hearing as to how the dyslexia might have impacted on the matters which gave rise to the disciplinary charges. The Panel should have recognised that the Claimant could not have a fair opportunity to present his case to them unless he had the chance to obtain such a report and, to do that, he needed an adjournment.

Mr Barr argued that damages would not be a satisfactory alternative remedy for the Claimant. Once the disciplinary process had run its course and if the Claimant was found to have been guilty of gross misconduct, the Trust would be entitled to say that the relationship of trust and confidence had broken down and an injunction or specific performance of the employment contract would not then be ordered. The Claimant was suspended and so there was no issue of public safety. The Claimant was still on full pay, but, if at trial he was unsuccessful and should have been dismissed earlier his professional organisation (which was backing him) would be good for any reimbursement of pay that he ought not to have received. The investigation had already taken years. A few further weeks was the lesser evil than the unjustified loss of the Claimant’s job and career.

Mr Moretto’s response had several strands. He submitted that the Claimant had known the charges he was likely to face since the beginning of November 2014. That was ample time to prepare his response. Indeed, since his solicitor had been present at all four of the Claimant’s interviews with the Berlet investigation, he had known of the areas of concern for very much longer. The final version of the charges had been in identical terms to the draft and therefore contained no surprise for the Claimant or his advisers. Furthermore, when the hearing was proposed to take place in December 2014, RLB wished to tweak the dates by a day or two for the convenience of their counsel. They had not then seen the final version of the charges nor the management case, but they did not suggest that these would be an obstacle to a December date. The Panel had been prepared to make adjustments to the hearing procedure in order to make allowance for the Claimant’s dyslexia. Furthermore, they contemplated the possibility of seeking an independent expert’s report on the impact of the Claimant’s dyslexia if they thought that necessary. There was no reason why the Panel should not adopt that procedure.

Additionally, Mr Moretto drew attention to the provisions in the disciplinary policy for an appeal. The purpose of the appeal was to consider whether the disciplinary action was appropriate and reasonable in all the circumstances (see paragraph 7.17.1 of the Policy). The grounds of appeal could include a failure to follow procedure (see 7.17.4 1^st indent) and this could include a complaint that the employee had been unfairly treated. It could also include ‘new evidence which has genuinely come to light since the Disciplinary hearing’. (see 7.17.4 5^th indent) and so, if the Panel did not require a further dyslexia report but one was subsequently obtained by the Claimant, that could potentially be advanced as a ground of appeal. It was right that for gross misconduct the Panel could decide that immediate dismissal was appropriate. In those circumstances, the sanction was not suspended pending any appeal, but, if an appeal was brought and was successful, the Claimant’s contract of employment would be revived (see Roberts v West Coast Trains Ltd. [2005] ICR 254 at [22] – [26].

Mr Moretto also reminded me of the authorities which warned against the use of injunctive relief to micro-manage disciplinary proceedings (e.g. Kulkarni v Milton Keynes NHS Foundation Trust [2010] ICR 101 at [22]) and the desirability of allowing such proceedings to take their course since that was the procedure envisaged by the parties’ contract (see for instance Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) [51] – [53] and Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735 (QB) [161]).

In addition, he submitted that relief should be refused since the Claimant had delayed. The hearing was now underway. If the Claimant had thought fairness made an adjournment obligatory, he should have sought relief from the Court at an earlier stage.

With one caveat (to which I will return), I accept the submissions of Mr Moretto. By their contract, the parties have given the Disciplinary Panel the responsibility in the first place to see that the hearing before them is fair. I respectfully agree with the authorities which have been cited to me to the effect that the Court should not try to micro-manage such hearings and they should generally be left to run their course. I accept that this cannot be a universal rule. As those authorities have also recognised, there may be cases where a ‘clear wrong’ (in the language of Beatson J in Makkhdum at [53]) requires the Court to intervene. However, in my judgment the Claimant in this case has come nowhere near to showing that the present circumstances are such that there should be an injunction. The Disciplinary Panel showed that it was willing to make adjustments to its procedure to cater for the Claimant’s dyslexia. It was not prepared to grant an immediate adjournment to allow the Claimant an opportunity to obtain a further report for deployment as evidence in the hearing, but it did not shut out the possibility that, on considering the case further, it might decide that an independent expert report would be useful. Given particularly the late stage at which dyslexia report had been produced, it seems to me that this course was well within the discretion of the Panel.

The Claimant had been concerned that not all the witnesses it would have wished the Trust to call would have been available. However, I consider that the Panel was entitled to take into account that the Claimant had been asked the previous autumn as to which witnesses he required, but had only responded very shortly before the Panel hearing. In any case, the Disciplinary Policy expressly gives the Panel the final decision as to which witnesses on behalf of the Trust need to be called (see paragraph 7.11.3 1^st indent). Where witnesses are not called by the Trust it would be open to the Claimant to submit that less weight should be given to their hearsay evidence because it had not been tested by cross examination. It would, of course, be for the Panel to decide how persuasive such arguments were.

I have said that in the first place the parties’ contract gives the Panel the responsibility for deciding such procedural matters. In deciding whether it is appropriate for the Court to intervene at this stage, it is also relevant that the contract makes provision for an appeal hearing. If the Panel decides that the Claimant should be dismissed for gross misconduct, that sanction may take immediate effect and not be suspended pending an appeal, but that, too, is part of the contractual structure which the parties have agreed. If the appeal is successful and it is decided that the Claimant should not have been dismissed, Roberts supports the proposition that his contract of employment will revive. It did so after considering West Midlands Co-operative v Tipton [1986] ICR 192 on which Mr Barr relied.

The issue on which I was not persuaded by Mr Moretto was that the Claimant should be denied relief because of his delay. It seems to me that his claim would have been premature if he had come to Court before seeking a direction from the Panel (rather than just the Trust’s Case Manager) that the hearing should be adjourned. It may be that the Policy should be interpreted as allowing for requests for adjournments to be dealt with in advance of a hearing (and, perhaps, considered on paper). There would certainly be much to be said for this as a convenient course. But it was not part of Mr Moretto’s argument that this procedure would have been available to the Claimant and there was some force in Mr Barr’s point that Capsticks who refused to consent to an adjournment on behalf of the Trust said in their letter of 20^th January that RLB could make representations to the Panel at the start of the hearing. Nonetheless, delay on the part of the Claimant was a discrete part of his submissions. His lack of success in that regard is not, in the end, material. I conclude that with the appropriate assessment of the merits of the Claimant’s case which Lansing Linde requires me to conduct this is not a case where interim relief should be granted.

For all of these reasons this application is refused.