Injunctions to restrain disciplinary action in breach of contract

Mezey v South West London & St George’s Mental Health NHS Trust [2007], EWHC 62


Dr Mezey was a consultant psychiatrist. One of her patients, while on release from hospital, murdered someone. Internal enquiries were critical of Mezey’s clinical management decisions.


The trust, in investigating the matter, decided to suspend Mezey with full pay from all her clinical research and teaching duties. Mezey claimed that the trust’s decision to suspend her was a breach of contract, and she sought an interim injunction to permit her to continue to perform her non-clinical duties.


Decision


The High Court accepted that Mezey had a case to say that the trust was contractually in the wrong and gave the injunction, which was upheld by the Court of Appeal.


The employer had argued that although case law permitted the court to restrain an employer from dismissing in breach of contract, there were no cases allowing a court to restrain a suspension in similar circumstances.


The employer also argued that a suspension was qualitively different from a dismissal, but the Court of Appeal disagreed. Suspension is not a neutral act. It changes the status quo from work to no work and inevitably casts a shadow over the employee’s competence. Therefore, suspension and dismissal are capable of being a breach of contract, depending on the facts. This was the case here, and damages for breach of contract would clearly not be adequate for Mezey, given the slight on her reputation.


Key implications


This is the first case in which an injunction has been issued restraining an employer from suspending an employee pending the outcome of disciplinary proceedings.


This kind of claim was first made possible by the case of Hill v CA Parsons & Co Ltd [1972] Ch 305. At that time, though, a pre-condition of the claim was that trust and confidence was still existing between the employer and the employee. A mere assertion by the employer that trust and confidence had gone would dissuade the courts from giving the injunction.


More recent cases – involving professional clinicians, where reputation is at stake – show that the courts will now order injunctions even where the employer asserts that trust and confidence no longer exist.


In Gryf Lowczowski v Hinchinbrooke Healthcare NHS Trust [2006] IRLR 100, the High Court considered the case of a consultant surgeon who had been subject to an investigation about his professional competence. A key recommendation was that he should undertake a clinical re-entry package to allow his safe return to work. The employer ignored the report and terminated his contract.


The High Court held that the claimant was entitled to an injunction restraining the trust from dismissing him until it had completed the contractual disciplinary procedure. The fact the employer said that trust and confidence between the employer and employee had broken down was not a bar to an injunction. The employee’s reputation was at stake and he had a right to enjoy a full process before dismissal. Mezey is the latest in this line of cases that extends the principle.


These new cases are very important to professionals who have limited opportunities to work outside their chosen profession, and where reputation is of fundamental importance.


By John McMullen, partner and head of employment law, Watson Burton




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