Mark Sutton KC

Mark Sutton KC has extensive experience of the full range contentious employment proceedings.

In recent years, he has represented both claimants and employers in high-value tribunal proceedings in connection with City bonus claims and share option entitlements. Mark was instructed on behalf of a major financial services institution in the successful defence of a multi-million pound race discrimination claim arising out of the dismissal of a senior employee.

Mark has a particular interest in whistleblowing claims and employment disputes involving professional employees.

Alongside his appearances in the employment tribunal and appeal tribunal, Mark has significant experience of High Court employment practice. He is routinely instructed to advise on the availability of interim remedies and has successfully represented both claimants and defendants in a number of significant reported cases:

• Smo v Hywel DDA University Health Board [2020] EWHC 727 (QB) High Court considers procedures for addressing conduct and capability proceedings under policy: Upholding Professional Standards in Wales. Mark Sutton KC leading Betsan Criddle KC for successful claimant;
• Royal Mencap Society v Tomlinson-Blake;  Shannon v Rampersad t/a Clifton House Residential Care Home [2019] I.C.R. 241. Court of Appeal consider entitlement of carers to receive national minimum during sleeping-in shifts. Mark Sutton KC for successful respondent in the conjoined appeal of Shannon;
• Agarwal v Cardiff University [2019] I.C.R. 433. Court of Appeal considers whether an ET can construe the employment contract when deciding what amount of wages was properly payable in a Wages Act claim brought under Part II of the Employment Rights Act 1996. Mark Sutton KC, leading Eleena Misra, appeared for the successful appellant in the lead appeal;
• North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387. Court of Appeal hands down important guidance on the conduct of concurrent employment based and criminal investigation processes; the power to dismiss for failure to maintain professional registration during a period of MPTS interim suspension and the right to withhold pay during such periods. Mark Sutton KC, leading Nadia Motraghi, appeared for the successful appellant;
• Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 (QB). High Court refuses to grant injunction restraining Trust from proceeding with internal process addressing breakdown in working relationships. Swift J. provides important guidance on the proper application of MHPS to complaints of this character and the extent to which reference can be made to the output of an internal mediation process. Mark Sutton KC, leading Louise Chudleigh, appeared for the successful Trust;
• Dahou v Serco Ltd [2016] EWCA Civ 832. Court of Appeal. Mark Sutton KC successfully challenges finding of the ET in relation to (1) detriment for a reason relating to Trade Union membership activities or services contrary to section 146(1) of the Trade Union & Labour Relations (Consolidation) Act 1992; and (2) automatically unfair dismissal on the footing that the principal reason for the dismissal was the appellant’s trade union activities: section 152 of the 1992 Act;
• West London Mental Health Trust v Chhabra (Supreme Court) [2014] ICR 194. Availability of an injunction to restrain the categorisation of disciplinary complaints as “gross misconduct”. Guidance on the proper interpretation of MHPS procedures;
• Langford v Department of Health [2014]Employment Tribunal (London Central). Mark Sutton KC for the Secretary of State, leading Christopher Edwards. Successfully defended remedy proceedings brought by former Chief executive officer following a dismissal for alleged mismanagement of the Trust’s finances and other breaches of his duties as accountable officer. Nil compensation ordered;
• Dahou v Serco Limited [2013] Employment Tribunal London Central. Mark Sutton KC for Serco. Multi-day hearing into complaint of alleged victimisation and detrimental treatment on grounds of trade union activity. Permission granted for appeal to the Employment Appeal Tribunal (for hearing in 2014);
• Matthews v Buckinghamshire Healthcare NHS Foundation Trust [2013] EWHC 753 (QB) Globe J. Whether a breach of contract for disciplinary panel to take account of a “spent” disciplinary warning in the determination of sanction in conduct proceedings against a consultant surgeon. Mark Sutton KC for the successful Trust;
• Palmer v East and North Hertfordshire NHS Trust [2012] Age discrimination: Mark Sutton KC successfully representing consultant surgeon in complaint of unlawful age discrimination. Substantial compensation awarded;
• Kerslake v North West London Hospitals NHS Trust [2012] Med LR 568. Whether Trust could proceed to a dismissal hearing on the grounds of an irretrievable breakdown in working relationships: whether SOSR dismissal hearing can be pursued outside disciplinary procedures. (Mark Sutton KC for the successful Trust leading Betsan Criddle KC);
• Lim v Royal Wolverhampton NHS Trust (High Court) (2011) 122 BMLR 43, [2011] EWHC 2178 (QB) Mark Sutton KC (leading Betsan Criddle KC) represented the claimant in a successful application for declaratory and injunctive relief requiring an NHS Trust to refer a clinician’s case to the National Clinical Assessment Service as a condition precedent to proceeding with an internal capability hearing;
• Hussain v Surrey and Sussex Heathcare NHS Trust [2011] EWHC 1670 (QB) Mark Sutton KC (leading Ben Cooper KC) representing NHS Trust. Trust successful in resisting an application for injunctive relief preventing it from proceeding with a conduct hearing, in circumstances where a clinician’s practice was also the subject of capability concerns;
• Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 WLR 55 Supreme Court. Mark Sutton KC representing the successful Trust in a landmark appeal before a seven Justices Court, overturning the unanimous ruling of the Court of Appeal. Judgment addresses the extent to which damages (beyond contractual notice) are claimable for breach of a contractually incorporated disciplinary procedure;
• McGregor v Abertawe Bro Morgannwg University Local Health Board [2011] High Court. Mark Sutton KC successfully representing claimant professor of plastic surgery. Case concerned the proper construction of contractual leave entitlements provided for under nationally negotiated terms of employment for medical staff in Wales;
• Puri v Bradford Teaching Hospitals NHS Foundation Trust [2011] IRLR 582 [2011] Administrative Court. Mark Sutton KC representing the successful defendant Trust (with John Bowers KC) in a judicial review application in which the claimant sought an injunction restraining the Trust from proceeding with a disciplinary hearing on the ground of non-compliance with Human Rights Convention requirements;
• Speight v County Durham & Darlington NHS Trust [2010] Employment Tribunal Newcastle. Reported: EqLR 403 ET. Mark Sutton KC representing Trust in successful defence of an age discrimination complaint brought by hospital consultant in connection with refusal of post-retirement employment;
• Chagger v Abbey National [2009] ICR 624 (Court of Appeal). Mark Sutton KC representing Abbey National (with Christopher Jeans KC) Guidance on the availability of stigma damages and calculation of future loss of earnings in race discrimination complaints;
• Chauhan v General Medical Council [2009] High Court (leading Andrea Chute). Six-day appeal before the High Court, overturning key findings of a Fitness to Practise Panel. Case remitted to the GMC for rehearing. Important guidance on the approach to be adopted by a disciplinary panel in determining the proper scope of allegations of dishonesty in regulatory proceedings. Mark Sutton KC representing successful doctor;
• Qasim v The Central Manchester Hospitals NHS Foundation Trust [2009] [High Court]. Mark Sutton KC successfully representing the defendant Trust in resisting application for mandatory injunction requiring it to lift the claimant clinician’s exclusion from work. Reported: 2009 AllER (D) 39/ 2009 53 Sol Jo. (No.34);
• Annis v Eclipse Energy Company Limited [High Court: June 2007]. Mark Sutton KC successfully representing defendant company in resisting a claim for wrongful dismissal and establishing breach of fiduciary duties on the part of a finance director of an oil and gas exploration company;
• Ahmed and others v Secretary of State for Health [2005]. Multi-week hearing concerning allegations of nationality discrimination in relation to the government’s scheme for the higher specialist medical training of overseas doctors. Mark Sutton KC (leading G. Mahmood) for the doctors;
• Kircher v Hillingdon PCT [medical law report] injunction restraining dismissal. Post termination injunction granted by the High Court, restraining the employer from acting on a purported dismissal pending compliance with a contractually incorporated disciplinary procedure. Mark Sutton KC (with John Hendy KC) representing doctor claimant;
• Darnton v University of Surrey [2003] IRLR 133 EAT. Mark Sutton KC representing university in successfully resisting claimant’s appeal to the Employment Appeal Tribunal. Important guidance provided on the requirement of “reasonable belief” in whistleblowing claims brought under Part IVA of the Employment Rights Act 1996.

Mark Sutton KC has a substantial practice in the field of professional disciplinary proceedings, particularly in connection with the medical profession. He acts for NHS employers and medical practitioners appearing before regulatory panels and tribunals.

Mark has particular experience in cases which encompass the areas of professional regulation and discipline together with disputed employment rights.

Mark is routinely instructed to appear before professional disciplinary panels, including the MPTS and other healthcare regulatory bodies as well as internal disciplinary tribunals. He has represented doctors in proceedings for removal from the Performers List.

He has successfully undertaken a number of multi-week inquiries involving disputes over professional capability.

In addition, Mark has experience of hearings before the Administrative Court on appeal from the MPTS Interim Orders and FTP Panels as well as from disciplinary panels of the Nursing and Midwifery Council.

Mark conducts seminars with medical protection organisations on disciplinary and employment topics affecting doctors. For several years, Mark acted as a legal assessor on the NMC’s Fitness to Practise Panels.

In addition to disciplinary cases arising out of the healthcare sector, Mark has extensive experience as a panel chair of university grievance and disciplinary tribunals.

NOTABLE CASES:

• Smo v Hywel DDA University Health Board [2020] EWHC 727 (QB) Application for a mandatory injunction and declaratory relief. High Court considers procedures for addressing conduct and capability proceedings under Upholding Professional Standards in Wales. Mark Sutton KC leading Betsan Criddle KC for successful claimant;
• Sait v General Medical Council [2018] EWHC 3160 (Admin). The appellant submitted that it had been procedurally unfair not to have sufficiently put to him in cross-examination, or in the tribunal’s questions, that his alleged acts had been sexually motivated, and that there was no evidential basis for finding a pattern of sexually motivated behaviour. Mark Sutton KC appeared for successful appellant;
• R (Dr X) v General Medical Council  [2019] EWHC493 (Admin). Judicial review: High Court upholds doctor’s challenge, founded on threatened breach of Article 2 ECHR rights, to the publication of the determination of the Medical Practitioners Tribunal’s proceedings in the published records of the GMC and the MPTS. GMC’s appeal against sanction rejected. Mark Sutton KC, leading David Morris, appeared for successful applicant;
• North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387. Court of Appeal hands down important guidance on the conduct of concurrent employment based on criminal investigation processes; the power to dismiss for failure to maintain professional registration during a period of interim suspension and the right to withhold pay during such periods. Mark Sutton KC, leading Nadia Motraghi, appeared for the successful appellant;
• Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 (QB). High Court refuses to grant injunction restraining Trust from proceeding with internal process addressing breakdown in working relationships. Swift J. provides important guidance on the proper interpretation of MHPS and the extent to which reference can be made to the output of an internal mediation process. Mark Sutton KC, leading Louise Chudleigh, appeared for the successful Trust;
• Chakrabarty v Ipswich Hospital NHS Trust and NCAS [2014] EWHC 2735 (QB);
• Mark Sutton KC (leading Ben Cooper KC) for NCAS. High Court provides important guidance on the capability procedures under MHPS, and the requirement for referral to NCAS for the undertaking of a performance assessment;
• GMC v Dr X [2013] MPTS fitness to practise hearing. Whether trainee doctor’s fitness to practise impaired by dyslexia following prescribing errors. Finding of no impairment by reason of adverse physical or mental health. Mark Sutton KC for the doctor;
• GMC v Taher Sharaf [2013]. MPTS fitness to practise hearing. Allegations of dishonesty in connection with the alleged alteration of patient records and other matters. No misconduct found. Mark Sutton KC for the doctor;
• GMC v Dr Michael Lim [2012]. MPTS Fitness to Practise Panel. Consultant anaesthetist. Inquiry into multiple allegations relating to pre- and perioperative treatment. Mark Sutton KC for the doctor;
• GMC v Professor Al-Shihabi [2012] GMC. Fitness to Practise hearing. Allegations of misconduct including dishonesty brought against a consultant audiologist. Mark Sutton KC for doctor;
• Rauniar v General Medical Council [2011] [2011] All ER (D) 30. Administrative Court. Statutory High Court appeal brought against the decision of a review panel of the General Medical Council. Guidance provided on the function of the post-graduate deanery in the provision of remedial support to doctors who are the subject of GMC conditions of practice orders;
• Lim v Royal Wolverhampton NHS Trust [2011]High Court. Mark Sutton KC (leading Betsan Criddle KC) represented the claimant in a successful application for declaratory and injunctive relief requiring an NHS Trust to refer a clinician’s case to the National Clinical Assessment Service before proceeding with an internal capability hearing;
• Hussain v Surrey and Sussex Heathcare NHS Trust [2011] High Court. Mark Sutton KC (leading Ben Cooper KC) representing NHS Trust. Trust successful in resisting an application for injunctive relief preventing it from proceeding with a conduct hearing, in circumstances where a clinician’s practice was also the subject of capability concerns;
• Puri v Bradford Teaching Hospitals NHS Foundation Trust [2011] IRLR 582 Administrative Court. Mark Sutton KC representing the successful defendant Trust (with John Bowers KC) in a judicial review application in which the claimant sought an injunction restraining the Trust from proceeding with a disciplinary hearing on the ground of non-compliance with Article 6 ECHR requirements;
• Balamoody v Nursing and Midwifery Council [2010] Administrative Court. Mark Sutton KC representing the Nursing Council. Statutory appeal brought by registrant against the determination of an NMC restoration panel;
• East Lancashire Primary Care Trust v Pawar [2009] Administrative Court. Mark Sutton KC successfully representing the respondent general practitioner in resisting an appeal brought by the Primary Care Trust against a determination of the Family Health Service Appeal Authority;
• Aftab v North Lincolnshire NHS Trust [Administrative Court] [2010]. Mark Sutton KC (leading Marcus Pilgerstorfer) representing Trust in an application for judicial review. Issue as to the amenability of an internal disciplinary process to judicial review and the applicability of Human Rights Act protections;
• Chauhan v General Medical Council [2009] EWHC 2093 (Admin) High Court. Mark Sutton KC (leading Andrea Chute) representing doctor in successful six day appeal before the High Court, overturning key findings of a Fitness to Practise Panel of the General Medical Council. Case remitted to the GMC for rehearing.

Mark Sutton KC has significant experience of undertaking internal investigations and of chairing inquiry panels in the context of disciplinary proceedings, grievances and other employment-related processes. He has substantial experience of working with healthcare bodies, universities, police forces and a wide spectrum of public authorities and commercial undertakings. He is strongly praised by clients for his efficient and user-friendly approach, as well as the clarity, balance and thoroughness of his reporting and decision-making.

• R (Cummings & Or) v Betsi Cadwaladr University Health Board [Administrative Court] – Judicial Review challenging the failure of BCUHB to undertake a statutorily compliant consultation process and to observe Public Sector Equality Duty prior to closure of consultant led maternity services in North Wales. Mark Sutton KC, leading Nadia Motraghi, for the successful claimants;
• R (Aditya Agrawal) v East Lancashire Hospitals NHS Trust [High Court] – Judicial Review brought by NHS consultant, challenging internal inquiry into breakdown in departmental working relationships. Availability of public law remedies in an employment dispute. MSQC for the successful Trust;
• R ex pte British Medical Association v General Medical Council [Administrative Court] – Application for judicial review. Challenge to the decision of the GMC to provide advice to doctors on the professional ramifications of engagement in threatened industrial action. MSQC, leading David Cunnington, for the applicant;
• Aftab v North Lincolnshire NHS Trust [Administrative Court] – Mark Sutton KC (leading Marcus Pilgerstorfer) representing doctor claimant in an application for judicial review. Issue as to the amenability of an internal disciplinary process to judicial review and the applicability of Human Rights Act protections.

• Mark Sutton KC features on the Capsticks podcast “Maintaining High Professional Standards in the Modern NHS”
• Old Square Chambers shortlisted for eight awards at The Legal 500 Bar Awards 2023
• Mark Sutton QC and Alex Shellum successful in Kamalnayan Gupta v Northampton Hospital NHS Trust
• Old Square Chambers instructed in Smo v Hywel Dda University Health Board (Judgment)
• Al-Obaidi v Frimley Health NHS Foundation Trust