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Court cancels suspension and orders Employee back to work


Posted on: Feb 15,2020


In Harrison v. Barking, Havering & Redbridge University Hospitals NHS Trust, the High Court cancelled Ms Harrison’s suspension and ordered the Trust to let her resume her duties. To fight a suspension as Ms Harrison did, see – Suspended from work: Understand the process, know your rights and Survive it

Ms Harrison is the Trust’s deputy head of legal services and since qualifying in 1992 has spent her entire legal career advising NHS bodies or doctors. The split of her work was 60% inquest work, 35% claims work and 5% advisory work and legal teaching.

In May 2019, Mr Avery, who is the Trust’s director of nursing, asked her to carry out an internal staff investigation. Ms Harrison discussed the request with the head of legal services and concluded that it would be inappropriate for her to do so for various reasons, including that she was not sufficiently independent and the role might impair her ability to advise the Trust on the disciplinary process.

Mr Avery did not reply to these concerns but instead instigated disciplinary proceedings which led to Ms Harrison receiving a verbal warning. This was issued due to her failing to undertake the investigation and also for Mr Avery hearing her tell Capsticks Solicitors  that “my daughter could do a better job”.

Mr Avery arranged for a senior lawyer from Capsticks to carry out an initial review of a large number of the trust files and interview members of the team about how they managed the claims. The review talked about the legal team “micromanaging” cases, making decisions without seeking instructions from senior Trust management and sometimes causing additional cost and delay. One example given was the way Ms Harrison had handled a clinical negligence case after the Trust had lost at trial. The day after the Trust received this report, Ms Harrison was suspended because of her handling of the clinical negligence case, despite not previously having received any criticism. She was also not provided with details of the allegations.

A week later, Ms Harrison was diagnosed with stress and prescribed antidepressants by her G.P. When she went off sick, her suspension was lifted and she was treated as being on sick leave. The Trust asked Ms Harrison to return to work on restricted duties, comprising largely administrative work and legal teaching, but with no casework. She refused on the basis that this was a demotion and contrary to medical advice (to the effect that a return to full duties would improve her health). As a result, Ms Harrison was suspended again for refusing to obey an instruction.

Ms Harrison explained to the Court how her health has suffered as a result of the suspension.  She said, “ I have found the fact that I have been suspended (for the first time in my professional life) humiliating and distressing. I have become tearful, I am not sleeping or eating properly, and I am having panic attacks when I think about not being able to return to the work I love…I am proud of the fact that I am a solicitor and I am proud of the work that I have done in the NHS and for the defendant in particular”.

In the High Court, Judge Obi said it was strongly arguable the two decisions to suspend Ms Harrison were unreasonable, a breach of the implied duty of trust and confidence meaning there was no proper justification for preventing her from returning to her normal duties, save for clinical negligence work. The Judge found that the main issue was her handling of the Clinical Negligence case and the suspension was not a proportionate response.

The Judge said, “The evidence does not indicate that harm would be caused to the defendant in permitting the claimant to resume her inquest and medico-legal work…..However, there is clear evidence that excluding the claimant from her place of work has caused significant personal upset and is professionally to her detriment…..Furthermore, there is clear evidence that permitting the claimant to return to her normal duties would enable her to regain her health.”

The Judge cancelled the suspension and ordered the Trust to allow Ms Harrison back to work.

 

 

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