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The Queen's Bench Division of the High Court has decided that an employee was entitled to an interim injunction lifting her exclusion from work in Jahangiri v St George's University Hospitals NHS Foundation Trust.

The claimant is a heart surgeon. The unit she worked in was under review and it was alleged in an email from a fellow employee that she had shouted at a nurse and prioritised a private patient over an NHS one. Following a disciplinary investigation the defendant decided to exclude the claimant (this decision was due to another allegation that the claimant had indirectly approached a witness in the review of the unit contrary to an instruction not to obstruct the review, though the claimant stated that the approach had been in relation to the disciplinary investigation). The claimant applied for an interim mandatory injunction that the defendant lifts the exclusion, as part of a claim for breach of contract.

The High Court granted an injunction. The claimant had explained the impact of exclusion on her reputation and on third parties. There was also a wider public interest that doctors should not be excluded from practicing unless it was strictly necessary to do so. The Court found that the claimant had strong grounds for contending that the defendant's actions were in breach of contract, or in breach of the implied term of trust and confidence. Total exclusion was unnecessary, and the defendant had failed to consider whether other measures short of total exclusion could be taken. In addition, the exclusion was not proportionate, and there was a failure to consider the proportionality of the consequences of it.

Take note: The decision in Jahangiri emphasises the importance of considering all the possible options before suspending an individual from the workplace. In this case arguments about the surgeon's reputation, the impact of her absence on her patients, and the fact the generally doctors should not be excluded from working were particularly important. However, suspension should only be considered as a last resort, and should ideally only be for a brief period of time while any misconduct is investigated.

This article is taken from HR Law - October 2018