224: High Court injunction allowing suspended employee to perform duties

In the recent case of Harrison v Barking, Havering & Redbridge University Hospitals NHS Trust (the Trust), a solicitor was granted an interim injunction allowing her to resume most of her duties after the High Court ruled that her suspension was unreasonable.

Ms Harrison is a solicitor and Deputy Head of Legal Services for the Trust. Her duties include conducting clinical negligence and personal injury claims, inquests, medico-legal issues such as confidentiality and safeguarding, and legal teaching. Ms Harrison was suspended following concerns about her handling of a clinical negligence case. She was subsequently diagnosed with stress and depression. About three months after her suspension, the Trust asked her to return on very restricted duties, mainly auditing files and legal teaching, and with no case work unless supervised by an external third party, pending the outcome of an internal investigation. However, Ms Harrison refused on the basis that this would be a demotion and contrary to medical advice that her health would not improve until she resumed her full duties. The Trust then suspended her again for refusing to obey an instruction.

Ms Harrison applied to the High Court for an injunction permitting her to perform most of her normal duties, arguing that the Trust’s actions amounted to a breach of the implied duty of trust and confidence and that her health was being harmed as a result.

The High Court agreed that Ms Harrison had strong grounds to argue that the Trust’s actions amounted to a breach of the implied duty of trust and confidence and that there was no reasonable and proper cause for the suspensions. Criticisms of her inquest and medico-legal work to justify a restriction of her duties had been made after the decision to suspend her and had not been raised with her at any time previously. There were also many procedural defects. For example, the Trust had failed to provide her with full details of the allegations and to progress the investigation in her absence. There was also no evidence that allowing Ms Harrison to undertake most of her normal duties would harm the Trust, whereas it was clear that the suspensions had adversely affected her health and professional status. The court therefore granted a mandatory interim injunction permitting Ms Harrison to perform her duties autonomously, with the exception of clinical negligence casework.

It is rare for the courts to grant an injunction ordering an employer to allow an employee to work. However, this decision illustrates that the courts will intervene where an employee has a strong argument that their employer’s actions amount to a breach of the implied duty of trust and confidence, particularly where the employee is a regulated professional or suspension could harm their reputation. Even where there is an express clause permitting suspension, as in this case, it should only be used as a last resort and where there are reasonable and proper grounds to do so, based on the evidence available at the time. It is also important to ensure that the decision-making process is clear and well-documented. In this case, the employer could not show that the suspension was logical or relevant to the alleged concerns about the employee’s performance.