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Al-Obaidi v Frimley Health NHS Foundation Trust


Judgment has been given in this High Court employment case, in which Mark Sutton QC and Laith Dilaimi successfully represented the Defendant NHS Foundation Trust.

The Defendant Trust had conducted disciplinary investigations into the Claimant, a consultant cardiologist in its employment, and had concluded that there was a case to answer in relation to allegations potentially amounting to gross misconduct, namely that the Claimant deliberately gave a misleading account of the management of a patient by a consultant colleague. The Defendant Trust decided to hold a disciplinary hearing.

The Claimant, who had brought two previous applications for interim injunctions against the Defendant in relation to this disciplinary process, now sought from the High Court a permanent injunction restraining the Defendant from holding a disciplinary hearing. The Claimant argued that: the disciplinary process had been conducted in breach of the Claimant’s contract of employment; there was no case to answer in relation to the allegations of gross misconduct; and the Defendant’s conduct of the disciplinary process had destroyed any confidence he might have had in it.

A significant legal issue which the High Court had to resolve in this case was the approach that it should take when faced with an allegation that there was insufficient evidence to support the employer’s decision to refer a case to a disciplinary hearing and that to do so would amount to a breach of the  contract of employment.

  • The Claimant argued that it was up to the Court to determine for itself whether there was a case to answer based upon its own evaluation of the evidence. If the Court decided that the evidence collated in the course of the investigation was insufficient to show a case to answer, it would amount to a breach of contract, restrainable by injunction, for the employer to refer the case to a disciplinary hearing.
  • The Defendant opposed the suggestion that the Court should resolve the ‘case to answer’ question relying on its own evaluation of the evidence. The employer’s decision whether to refer a case to a disciplinary hearing entailed the exercise of a discretion. As part of the implied trust and confidence obligation, the employer had a duty to exercise that discretion in good faith and rationally (as per Braganza v BP Shipping Ltd). Those standards were satisfied in this case. The Court’s power to intervene by granting injunctive relief was confined to circumstances where the employer had acted outside the ambit of that discretion.
  • Elisabeth Laing J. agreed with the Defendant: “this is a situation in which it is necessary to imply a term in the contract of employment that the discretion to decide whether there is a case to answer is to be exercised in good faith, and rationally. The contract confers the discretion on the case manager, and the court reviews the exercise of the discretion to see whether it has been exercised rationally and in good faith. The court will only interfere with his decision if he has broken the implied term which governs the exercise of his contractual discretion; that is, if his decision is made in bad faith, or irrational in the public law sense” (Judgment para. 41).

Elisabeth Laing J. dismissed the Claimant’s application for an injunction. She found the case manager had reached a rational decision, in good faith, that there was a case to answer; an assessment with which she also agreed. The judge found that none of the procedural irregularities in the disciplinary process was serious enough, whether on its own or cumulatively, to justify the grant of an injunction.

Mark Sutton QC and Laith Dilaimi were instructed by Andrew Rowland and Alessandra Gettins of Capsticks Solicitors LLP.

To view the full judgment, please click here,

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Mark Sutton KC Laith Dilaimi

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