Lauffer v Barking, Havering & Redbridge University Hospitals NHS Trust [2009] EWHC 2360 (QB)

Case No HQ09Z02786[2009] EWHC 2360 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of JusticeDate Monday, 10 August 2009
Strand
London WC2A 2LL
Before
MR JUSTICE HOLROYDE
Between
GIDEON LOUIS LAUFFERClaimantBARKING, HAVERING & REDBRIDGE UNIVERSITY HOSPITALS NHS TRUSTDefendant
MR ANDREW STAFFORD QC & MR SAM NEAMAN (instructed by Messrs Radcliffeslebrasseur) appeared for CLAIMANTMR JOHN BOWERS QC (instructed by Messrs Beachcroft LLP) appeared for DEFENDANT
Digital Transcript of Wordwave International, a Merrill Communications Company101 Finsbury Pavement London EC2A 1ERTel No: 020 7422 6131 Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
JUDGMENT
[1]The claimant, Mr Lauffer, has since 1998 been employed by the defendant NHS Trust as a consultant general surgeon. A number of incidents over a period of years have given rise to serious concerns on the part of the defendant. Certain matters have also been reported to the General Medical Council.[2]On 25 June 2009 the defendant purported to dismiss the claimant on the ground of an irrevocable loss of trust and confidence. On 1 July the claimant commenced proceedings claiming damages and declaratory and injunctive relief. On the following day, 2 July, the claimant made the present application for an interim injunction. That application first came before the court on 9 July when certain directions were given. It now comes before me. I speak of the dismissal of the claimant as a purported dismissal because it is the essence of the claimant's case that the dismissal is invalid by reason of the failure of the defendant to go through the process to which the claimant was contractually entitled. It has been made clear in correspondence between the parties that the claimant does not accept that the dismissal was valid. It is nonetheless convenient for me, as counsel have done, simply to refer to dismissal and to speak of the employment as having been terminated, whilst of course recognising that those matters are very much in issue.[3]In the present application for an interim injunction the parties are agreed that the court should apply the principles set out in the familiar case of American Cyanamid v Ethicon [1975] AC 396. The parties of course disagree as to the conclusion to which an application of those principles should lead me. I remind myself that it is not for me in the course of this judgment to express any view as to the merits of the claim provided only that the claimant can surmount the first hurdle of satisfying me that there is a serious issue to be tried. To that first hurdle I will come shortly.[4]I begin by giving a very brief outline of the chronology of events and incidents said to have given rise to the concerns on the part of the defendant. I outline all the incidents mentioned in the defendant's skeleton argument, though it should be noted that the claimant contends that many of these are stale and that it is only the last two which are in truth of any relevance.[5]In very brief summary, the matters to which the defendant refers are these. In May 2003 when dealing with a patient MD the claimant carried out laparoscopic surgery which is said to have been beyond his competence and the patient was as a result seriously injured. In June 2005 the claimant treated a patient KM in a way which is said to have been inappropriate and which resulted in injury to the patient. This episode was the subject of a complaint and a referral to the GMC which resulted in a report adverse to the claimant. In September 2006 a patient RK sadly died as a result of brain injury during surgery. It is said that on that occasion the claimant carried out an operation which he should not have carried out and that he should have referred the matter to a colleague more specialised than himself. In May 2007 the claimant performed an operation recognised as a difficult operation on a patient TH who sadly died. In September 2007 the claimant performed an operation again acknowledged to be a difficult operation on a patient AS. Sadly that patient also died. This operation in relation to the patient AS is one of the two matters said by the claimant to be relevant to the present application. As a result of what had happened with the patient AS the claimant was on 8 October 2007 advised not to carry out certain types of operation.[6]The final matter of complaint and concern is that on 6 March 2008 at what I understand to be a private hospital known as Spire Roding the claimant assisted another surgeon in an operation which was of a type which the claimant himself had been told not to carry out. The criticisms of the claimant in summary are that he had not given written notice, as he should have done, to the Spire Roding Hospital of the restrictions on his practice. That gives rise to an issue of probity. It is also said against the claimant that what he actually did in relation to the operation constituted a breach of the prohibition on his carrying out such a procedure, notwithstanding that another surgeon was involved.[7]Following these various events and incidents the claimant was suspended from practice by the defendant in April 2008. The term of that suspension has been extended more than once and it continues up to and including today. In addition, on 9 July 2008 the General Medical Council ordered an interim suspension of the claimant's registration. That registration was suspended for a period of 18 months from 9 July. The defendant particularly invites me to have regard to the finding contained in the report of the General Medical Council's Interim Order Panel indicating:
"The Panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. After balancing your interests and the interests of the public, the Panel has determined to impose an interim order to guard against such a risk."
[8]I should also note that towards the end of that report the Panel said this:
"In deciding on the period of 18 months, the Panel has taken into account the uncertainty of the time needed to resolve all the issues in this case."
[9]Against the background of that outline chronology I turn to consider the contractual provisions relevant to this application and then to consider the sequence of events most closely related to the eventual dismissal.[10]The defendant has a disciplinary policy for doctors which implements the national policy framework, fully known as "Maintaining High Professional Standards in the Modern NHS" and commonly abbreviated to MHPS. The defendant's policy indicates that concerns about a doctor's conduct or capability can come to light in a number of different ways. The submission on behalf of the claimant is that all of the various matters said by the defendant to give rise to concern about the claimant fall within the ambit of concerns about capability, with one exception. That one exception is the allegation of misconduct and consequent issue of probity relating to the claimant failing to notify the Spire Roding Hospital of the restrictions on his own practice and playing a part in a procedure which he should not have undertaken.[11]The defendant's policy goes on to provide a detailed procedure for dealing with issues of capability. It also specifically provides that where there is a case which covers more than one category of problem they will usually be combined under a capability hearing. At paragraph 4.4 of the defendant's policy the following is stated:
"Wherever possible, the Trust will aim to resolve issues of capability (including clinical competence and health) through ongoing assessment and support."
[12]In further detailed provisions as to how capability concerns should be dealt with the policy goes on to provide a detailed prehearing process. The essence of the procedure, as it is submitted on behalf of the claimant, is that attempts will be made, firstly, to try to resolve any issue of capability through local action such as retraining, counselling or performance review. If for any reason such resolution is not practicable the matter will then be referred to the NCAS to consider whether an assessment should be carried out and to provide assistance in drawing up an action plan. Those steps, it is submitted, must be gone through before any question arises of the holding of a capability hearing. It is, submits the claimant, only when the NCAS assessment is to the effect that the performance is irremediably flawed that one needs to go further and convene a hearing. If there has to be a hearing detailed provision is, unsurprisingly, made for the manner in which it will be conducted.[13]The sequence of events most closely connected with the eventual dismissal can be summarised as follows. On 16 September 2008 Mr Stone, the defendant's then Executive Director of Human Resources, wrote to the claimant advising him that the investigation into the matter relating to the Spire Roding incident had now been completed. The letter went on as follows:
"In view of both the finding of the Spire Health investigation as to your probity and the previous finding of working outside of your clinical competence in the undertaking of a ... operation without formal preceptorship or supervision (I refer to the investigation regarding [AS]…), the view has been reached by the Executive that there is now a loss of trust and confidence between the employer and the employee. "
Therefore, as a result of these two episodes, it is our intention to proceed with a formal disciplinary hearing on the grounds of unprofessional conduct and you will be advised in due course as to the details of this process."[14]On behalf of the claimant Mr Stafford QC lays understandable emphasis on this letter as indicating that the defendant was there asserting a loss of trust and confidence but nonetheless going on to indicate that it was therefore (my emphasis) the Trust's intention to proceed with a formal disciplinary hearing. Mr Stafford also makes the point that the letter felt it appropriate and sufficient to refer only to those two most recent incidents. There was further correspondence by way of follow-up to that letter with various references to the disciplinary procedure then in progress.[15]On 10 October 2008 Dr Drabu, the defendant's Medical Director, wrote to the claimant advising him of the date and arrangements for the disciplinary hearing. The letter indicated that that hearing would consider the allegation of professional misconduct in that the claimant had failed to comply with the restrictions placed upon his practice in October 2007. The letter provoked a response from the claimant's solicitors challenging the appropriateness of such a hearing and contending that the capability procedure should have been followed. A formal grievance to that effect was indicated on behalf of the claimant. The need for a hearing of that grievance led to the disciplinary hearing being postponed. The defendant's letter of 11 November 2008 refers to that postponement. On 21 January 2009, despite the loss of trust and confidence to which reference has been made, Ruth McAll, the new interim and later substantive Director of Human Resources, wrote to the claimant inviting him to discuss possible work projects within the Trust.[16]Coming now to events immediately preceding the dismissal. On 6 May 2009 an exchange of correspondence by e-mail involving the GMC includes an acknowledgement on behalf of the defendant that there had been no significant developments as yet and no decision made in respect of disciplinary procedures. Then on 2 June 2009 Miss McAll wrote a letter to the claimant indicating:
"It has been some time since we have been in contact about the process concerning you. I am therefore inviting you to a meeting..."

The letter added:

"You can bring a colleague, trade union or defence union representative to the meeting."
[17]That reference to bringing a representative naturally enough gave rise to some concern on the claimant's behalf. The representative whom he wished to accompany him was Professor Seymour of the Medical Protection Society. She wrote on 17 June to Miss McAll saying that the proposed date was inconvenient and asking for a different date to be arranged. Professor Seymour's letter then continued:
"It would be extremely helpful if you could let me know in advance of the meeting, the topics that you would like to discuss at the meeting so that I can properly prepare."
[18]To that letter there was no response. On 22 June Professor Seymour wrote by e-mail acknowledging a revised date for the meeting and adding:
"I would be grateful if Ms McAll could let me, or Mr Lauffer, have an agenda for the meeting."
[19]To that letter there was no written response. Professor Seymour says, however, that she did speak on the telephone to the personal assistant to Miss McAll. Professor Seymour's statement says that the personal assistant told her:
"That the meeting was informal, that there was no agenda and it was simply a ‘catch-up’ meeting."
[20]The defendant has filed no evidence to contradict Professor Seymour's assertion in that regard.[21]The meeting to which that correspondence had related took place on 25 June. It comprised in essence the delivering to the claimant of a letter clearly prepared before the meeting indicating that the claimant was to be dismissed. The letter said in part this:
"However, he [Mr Burrell] and the Trust have concluded that, despite attempting a number of ways to overcome these past difficulties, there has been a lost trust and confidence in you. After much thought and these previous attempts to resolve matters, the Trust has come to the view that this breakdown is irrevocable. "
Regrettably, the Trust has therefore decided that it has no choice but to terminate your employment with effect from 25th June 2009. Your salary will be paid up to that date, together with pay in lieu of any holiday accrued but untaken. You will also be given a payment in lieu of 3 months' notice. "I stress that this is not a misconduct or capability dismissal -- it is about the Trust's overall trust in you having broken down as a result of a long accumulation of events. "You have the right to appeal this decision." The letter concluded with an indication of the steps to be taken if the claimant wished to appeal.[22]I should record, although it is not appropriate to go into the merits of the various factual allegations and counterclaims, that the claimant does not accept the evidence against him as to his performance on occasions in the past, as to his professional judgment or as to his professional insight. All those of course are matters which could be resolved only by the hearing of the full trial.[23]Against the background of the matters which I have outlined as briefly as possible above, I turn to consider the application of the American Cyanamid v Ethicon principles. The first issue I have to decide is whether the proceedings raise a serious issue to be tried. The parties formulate this issue in slightly different ways, though I do not find any material difference. The claimant says that the issue is whether the defendant's contractual disciplinary process applies to this claimant, entitling him to the relief which he claims in his Particulars of Claim.[24]The essence of the claimant's case, as summarised by Mr Stafford, is that the defendant thought that the claimant lacked the skill, knowledge or judgment to do his work at an acceptable level. The matters relied upon, contends Mr Stafford, are manifestly within the scope of the contractual policy relating to capability. They all require investigation. They might be capable of the sort of local remedy contemplated by the policy. If not, they would be susceptible of NCAS assessment which might not result in the conclusion that all was irrevocably lost. That procedure, contends Mr Stafford, was not followed when it should have been and so the defendant has simply not abided by its contract. The claimant, he contends, is entitled to require the defendant to do so. An assertion of a loss of trust and confidence cannot sensibly be made without considering why such an assertion is put forward. Any such consideration, submits Mr Stafford, inevitably raises in the circumstances of this case issues of capability.[25]For the defendant Mr Bowers QC says that the issue upon which I must focus is whether the dismissal is arguably of no effect, for the reasons which are set out in paragraph 3 of the Particulars of Claim, which is in the following terms:
"The purported dismissal took place: (1)without warning; (2) without a hearing; (3)at a time when the Trust had embarked upon but had not concluded the contractual procedures relating to the Claimant's performance and conduct; (4) at a time when the Trust had received but had not dealt with a grievance lodged by the Claimant in accordance with the Trust's Disciplinary Policy."
[26]As I have indicated, I do not find any material distinction in the formulations of the issue upon which I should focus. I have already summarised the nub of the claimant's case. Adding to what I have already said, the claimant submits that he should not have been dismissed without going through the contractual process to which he was entitled and which would have been aimed not at dismissing him but at trying to avoid dismissal and, if at all possible, to preserve his practice as a doctor.[27]The claimant relies on a number of decided cases in support of his contention that the interim relief which he seeks can in an appropriate case be granted by the court. I refer briefly to some of the authorities relied upon by Mr Stafford. In Robb v Hammersmith and Fulham London Borough Council [1991] ICR 514 Morland J held that the enforcement by injunction of a contract of employment, though rare, could be ordered by the court if the plaintiff's proposed arrangements for the continuation of the contract were workable, despite the loss of trust between employer and employee, and if on the balance of convenience the circumstances of the case merited the granting of the relief sought. The passage of Morland J's judgment at page 520, letters C to E, is particularly in point.[28]Next, in Gryf-Lowczowski v Hinchingbrooke Health Care NHS Trust [2005] EWHC 2407 QB it was submitted to Gray J that the defendant Trust in that case had invoked the doctrine of frustration in order "illegitimately to sidestep the disciplinary provisions in the employment contract". Gray J in his conclusions acknowledged that injunctive relief to compel a party to comply with a contract of employment will be appropriate only in unusual circumstances and acknowledged that in the case before him the relationship of trust and confidence between employer and employee had self-evidently broken down. He nonetheless said:
"But it does not appear to me to follow that on that account no injunctive relief should be granted."
[29]Gray J referred to the decision of Morland J in the case of Robb and also to the decision in the case of Barros v D'Sa [2001] IRLR 691. At paragraph 76 of his judgment Gray J went on to accept the substantial financial cost to the defendant Trust in that case of maintaining Mr Gryf-Lowczowski's contract and accepted also that by maintaining the contract of employment he would prolong what was currently an unsatisfactory situation at the hospital. He nonetheless indicated that he was unable to regard a remedy in damages as adequate and he concluded that injunctive relief was appropriate in that case.[30]Next, in Kircher v Hillingdon Primary Care Trust [2006] Lloyd's Rep Med page 215 Mr Foskett QC (as he then was) had to deal with issues similar to those which arise before me today. At paragraph 63 of his judgment he indicated that he was being asked to prevent the defendant Trust from acting upon or otherwise treating as valid a letter purporting to terminate a contract of employment until all matters had been considered at trial. He concluded that it was appropriate in the circumstances of that case to grant an interim injunction.[31]On the basis of those authorities cited to me by Mr Stafford I am satisfied that I do have the power to grant the interim injunction sought if I find it appropriate to do so.[32]The defendant resists the application and submits that there are two reasons why there is no substantial issue to be tried. I shall deal with those two reasons each in turn. Firstly, Mr Bowers submits that the contract of employment here gives the defendant the right to terminate the contract on three months' notice or pay in lieu of notice whether for good reason or bad. Such a dismissal might give rise to a claim for wrongful dismissal but, submits Mr Bowers, the termination of the contract of employment would nonetheless be valid. In this regard Mr Bowers relies on Johnson v Unisys Limited [2003] 1 AC 518 and in particular on passages in the speech of Lord Hoffmann at page 540, paragraphs 38 to 41. The essence of those passages is that the law entitles both employer and employee to terminate the employment relationship without cause, the remedy for any breach of contract involved in such termination being an award of damages.[33]It is to be noted, however, that the issue in Johnson v Unisys related to whether terms could be implied into a contract of employment which it was contended would be contradictory of express terms of the contract. Here what is relied upon by the claimant are express provisions of the contract of employment as to the disciplinary process which the claimant says should have been followed before any decision to dismiss could begin to be made.[34]Mr Stafford submits on behalf of the claimant that Lord Hoffmann in Johnson v Unisys cannot have intended by his words to permit an employer simply to ignore a contractual disciplinary procedure or process. As was indicated in response to an inquiry by me in the course of his submissions, it is Mr Stafford's submission that the logical conclusion of Mr Bowers' point is that the defendant Trust could in law simply pay three months' salary in lieu of notice and dismiss the entire workforce without being in breach of anyone's contract of employment. I accept Mr Stafford's submissions in that regard.[35]The second argument advanced by Mr Bowers as to why I should say there is no substantial issue to be tried is this: the contractual provisions here entitled the defendant to dismiss the claimant for "some other substantial reason". That, submits Mr Bowers, is what has in fact happened and so the MHPS procedure is simply not engaged. That of course is not what the claimant was told in any of the correspondence to which I have referred. Nonetheless it is necessary to consider the submission made by Mr Bowers. He relies on Turner v Vestric Limited [1980] ICR 528 as authority for the proposition that a loss of trust and confidence between employer and employee may be a sufficient "other substantial reason" to justify the termination of a contract of employment. With that proposition I have no difficulty in agreeing. It is to be noted however, as the passage at page 529F in the judgment of Phillips J (as he then was) makes clear, that in Turner's case:
"Nothing had happened which could be regarded as misconduct on the part of the employee sufficiently serious to justify dismissal."
[36]Mr Bowers argues that the matters which here have given rise to the loss of trust and confidence are not matters of capability. His alternative submission is that, even if they were at one stage viewed as matters of capability, things have now moved on. In support of that argument Mr Bowers took me to a number of passages in a number of the witness statements on which the defendant would seek to rely at trial, including certain statements which I gave him leave to rely upon notwithstanding that they were served rather later than they should have been. It seems to me that a common theme emerges in the passages relied upon. That common theme is that what has given rise to concern about the claimant is his lack of judgment and his lack of insight.[37]To my mind there can be no doubt but that it is strongly arguable that a lack of judgment and a lack of insight on the part of a consultant general surgeon go to his capability to perform his role as a surgeon. Moreover, a loss of trust and confidence must be based on some intelligible and proper cause. Again I have no doubt that it is strongly arguable that what is here relied upon as the intelligible and proper cause for a loss of trust and confidence is in reality an adverse view of the claimant's capability.[38]Developing his submission, Mr Bowers argues that the defendant here is relying on a series of incidents. That is no doubt something which may be a very relevant factor at trial, but it seems to me that it is not something which assists Mr Bowers on the present question. A single incident of apparent incompetence sufficient in itself to give rise to the invoking of a contractual disciplinary procedure will often, if not generally, be capable also of being said to give rise to a loss of trust and confidence.[39]Having considered the arguments advanced by Mr Bowers, I accept the submission on behalf of the claimant that in the circumstances of this case the reference to "some other substantial reason" is a misdescription of what is in truth an allegation or series of allegations relating to the claimant's capabilities. I further accept Mr Stafford's submission that the contractual provision in relation to "some other substantial reason" is a residual category for cases where there is no misconduct or no capability issue, for example, a clash of personalities. Finally on this point, I accept Mr Stafford's submission that the MHPS inspired scheme cannot, as he puts it, be sidestepped by relabelling.[40]In coming to those views it has been an important factor in my consideration that the defendant itself regarded the disciplinary route as applicable to the circumstances of this case. In the correspondence to which I have briefly referred that was the position which obtained in the autumn and winter of 2008. I asked Mr Bowers in the course of his submissions what had changed since that time. To rephrase the question: why had that which was viewed by the defendant itself as a matter of capability in late 2008 ceased to be a matter of capability by the early summer of 2009? Whilst paying tribute to Mr Bowers' efforts to answer the question, I am bound to say that he was unable to do so in a way which satisfied me. He relied, firstly, on the fact that there has been here an accumulation of causes for concern. So there has been on the defendant's case, but there had been the identical accumulation of causes for concern by the time the disciplinary procedure was embarked upon in September 2008. There has been no material development or incident since then. Next Mr Bowers pointed to the fact that a new Director of Human Resources had been appointed. That, however, cannot be something which of itself can determine the appropriate categorisation of the true nature of the causes for concern about the claimant.[41]It is, in my conclusion, arguable that in truth what has changed since late 2008 is that the defendant has simply decided that an alternative and better way to proceed would be to change the course which had been set and to dismiss on a different basis. Crucially the change of course has occurred whilst the course initially set was still being followed and before any destination had been reached.[42]Before I leave this aspect of the case there is one matter which I ought to mention. The correspondence to which I have referred covers a period of some nine months. No one has suggested that the claimant is to blame for the fact that no progress appears to have been made with the disciplinary process during that period of time. I remind myself that it is not for me to express any views about the merits of any aspect of the various factual issues in the case at this stage. I do however observe that it seems to me as a simple matter of common sense that the stronger the case which it is said can be made against the claimant, the more straightforward and expeditious one might expect the disciplinary procedure to be. Indeed, anticipating a topic to which I will have to turn shortly, the offer recently made by the defendant to the claimant of an appeal hearing against his dismissal seems to imply that all necessary steps could be taken to prepare for such a hearing in a matter of a very few weeks at most. In all the circumstances I am satisfied that there is here a serious issue to be tried.[43]I consider next (and more briefly) the question of the adequacy of a remedy in damages if a party is affected adversely by the granting or refusal of the interim injunction sought. Plainly loss of or payment of salary is something which is readily compensable in damages. But by missing out on the disciplinary procedure to which he claims he is entitled, the claimant is entitled to submit that he has lost at any rate the opportunity to clear his name and the opportunity to avoid the extreme sanction of dismissal. In my judgment, having already decided that there is a substantial issue to be tried, it follows in the circumstances of this case that what the claimant says he has lost is not something for whose loss he can adequately be compensated in damages.[44]As I mentioned a moment ago, the defendant has recently offered the claimant the opportunity to appeal against the letter terminating his employment. That offer to my mind strengthens rather than weakens the claimant's position on the point which I am presently considering. It strengthens it for this reason: although the letter of 25 June from Miss McAll told the claimant that he had a right to appeal, I agree with Mr Bowers that a consideration of the contractual provisions shows no such right where there has been a dismissal for "some other substantial reason". Thus the procedure which has been adopted by the defendant here is not only one which has not allowed the claimant to put forward his arguments at any form of hearing, it is not even a procedure which strictly speaking entitles him to any form of appeal. What has been volunteered by way of appeal is to my mind fairly criticised by Mr Stafford as being back to front and as involving a very abbreviated timetable which seems to take no account of such rudimentary matters as the availability of relevant witnesses.[45]The conclusion to which I have come is that on the claimant's side damages would not be an adequate remedy for the loss he would suffer if I were to refuse an interim injunction but he were ultimately to be vindicated on the overall merits of his case. In contrast, I am unpersuaded that there is any loss for which the defendant could not adequately be compensated in damages if the interim injunction is granted and the claimant ultimately fails at trial.[46]I come now to consider issues relating to the balance of convenience. As I have already mentioned, the claimant's case is that he has lost the opportunity to present his response to the various criticisms made of him and has thus been denied the opportunity to clear his name or at least to avoid the extreme sanction of dismissal. What he seeks by way of interim injunction is not an immediate return to day to day practice as a general surgeon. It is readily acknowledged on his behalf that he presently remains suspended by the defendant. He also remains subject, for the time being, to the suspension of his registration with the General Medical Council. It might be thought that in those circumstances an injunction to the effect that his purported dismissal was invalid is somewhat of a hollow or pointless remedy. Any such view would to my mind be mistaken. The whole point of the claimant's case is that he has not been permitted the process to which he contends he is contractually entitled. What the interim injunction would do, in my judgment, would simply be to restore the position which obtained certainly in the autumn and the winter of 2008 and arguably, since there was no correspondence at all during this period, during the spring of 2009. Moreover, I have already indicated that I am unpersuaded that any relevant incident or event occurred after the autumn of 2008, other than what was arguably no more than a change of mind and a change of approach on the part of the defendant.[47]The defendant, on the other hand, submits that the granting of an interim injunction would be unworkable and in this regard Mr Bowers relies on Robb v Hammersmith and Fulham London Borough Council, to which I have already referred. A passage in the judgment of Morland J at page 523C is relied upon by Mr Stafford as indicating that what the learned judge there had in mind was the workability of the contractual disciplinary procedure, not the workability of an indefinite continuation of the contract of employment.[48]There are, as it seems to me, unusual and special circumstances here. The claimant, as I have said, is currently suspended by his employer and deprived of his registration by the General Medical Council. He does not contend that he should be entitled to go behind those practical bars upon his resuming day to day practice. Various submissions have been made to me in the course of the hearing by Mr Bowers about the defendant's perfectly proper concern for public anxiety about the continued employment of a much criticised surgeon. Those may well be legitimate concerns, but the answer to them, in my view, is that it is not proposed that the claimant, if granted this interim injunction, should immediately return to the operating theatre. On the contrary, all that is proposed is that he should be restored to the contractual process of consideration of his capability, to which he says he was entitled. Moreover, it seems to me that the defendant's submissions as to unworkability are in the end founded upon an acceptance of the evidence upon which the defendant relies. Whether that evidence is well-founded or not simply remains to be seen. I should mention on this issue that the defendant relies also on the case of Gryf-Lowczowski, to which reference has already been made. That particular authority thus has the status of being relied upon by both sides in the present dispute.[49]I come now to three final matters relied upon by Mr Bowers on the issue of the balance of convenience. Firstly, it is submitted by Mr Bowers that it is appropriate to have regard to the status quo and the status quo, submits Mr Bowers, is that the claimant currently stands dismissed from his employment. I accept Mr Stafford's submission that upon an application of American Cyanamid principles consideration of the status quo does not actually arise in this case because other considerations are not equally balanced. I must however say that in my judgment it would in any event be simply unjust to allow this point made by the defendant to succeed. The blunt reality is that the claimant was deliberately misled as to the nature of the hearing on 25 June 2009. Had any hint been given that that meeting had been convened in order that he be dismissed on a ground not previously ventilated, I readily accept the submission on behalf of the claimant that immediate action would have been taken by the claimant's solicitors to protest about any such proposed course and to warn of immediate litigation if that course were taken.[50]Mr Bowers relied in this regard on a passage in the judgment of Mr Foskett QC in Kircher v Hillingdon Primary Care Trust at paragraph 66. In that passage the learned deputy

judge accepted that the appropriate date for the purposes of the status quo:

"Depends upon when the relevant right to claim an injunction is intimated to the party against whom it will be sought and upon the nature and context of the dispute itself."
[51]I cannot however think that the learned deputy judge there had in mind the situation which obtains here. The situation which obtains here, in my judgment, is that the claimant took no advance steps to guard against sudden dismissal because he was deliberately misled into having no inkling that any such course would be taken at the meeting on 25 June.[52]The second point to which I should refer is that Mr Bowers submits that the granting of an interim injunction would be premature because of the appeal procedure which has been offered. I need, I think, say little about this. It is sufficient for present purposes to say that, having accepted that there is a substantial issue to be tried and having accepted that damages would not be an adequate remedy for the claimant if the injunction were refused, the form of appeal which has been offered does not to my mind begin to balance out what the claimant has arguably lost.[53]Finally, I should mention the submissions made to me as to article 6 of the Convention on Human Rights. In this regard I would be inclined to accept the defendant's submission, which is based upon the decision of the Court of Appeal in Kulkiarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789 and based also on R (on the application of Thompson) v The Law Society [2004] 2 All ER 113, that article 6 is not engaged in the circumstances of this case. Although I would be inclined to accept that submission, and for that reason do not grant relief on the ground of an arguable breach of article 6, I do not find it necessary to reach any concluded decision in that regard because for the reasons already given I am satisfied that the claimant has established his entitlement to the interim injunction sought.[54]In summary, for the reasons which I have endeavoured to give, I am satisfied that there is a serious issue to be tried, satisfied that damages would not be an adequate remedy for the claimant if an injunction were refused, and satisfied that the balance of convenience favours the grant of an injunction. I therefore grant the claimant the interim relief which he seeks.

Cited in 4 later judgments