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06 Sep 18

Are employers too quick to suspend employees accused of wrongdoing? Court forces employer to lift eminent doctor’s suspension.

September 6, 2018

The answer this month was a resounding yes in the case of Professor Marjan Jahangiri the first female professor of cardiac surgery in the United Kingdom and Europe who works at St George’s Hospital, Tooting, London. A pioneer of minimally invasive aortic valve surgery she operates on a very high number of complex patients and has been nominated for excellence awards in clinical leadership and training. She has one of the largest clinical practices in the UK and has an important role in cardio thoracic training, being responsible for some 35% of all UK trainee heart surgeons.

Professor Jahangiri was suspended (excluded) by her employer against the background of an inquiry into bickering between rival camps of doctors at the hospital after she contacted an employee through her PA about a separate unrelated disciplinary matter on the advice of a solicitor. She therefore made an application to the High Court for a mandatory injunction which would compel her employer to immediately lift her suspension and take all necessary steps to allow her an immediate return to her clinical and teaching duties.

As an NHS consultant Professor Jahangiri’s contract of employment incorporated her employer’s version of the NHS doctors’ disciplinary procedure “Maintaining High Professional Standards (“MHPS”) which places tight restrictions on the ability of NHS employers to exclude a doctor from work. Exclusion (suspension) under MHPS should only be for the protection of patients or staff, or to assist an investigation process. An exclusion of a doctor must be necessary (a higher standard than “appropriate”) and the least restrictive sanction must be used to meet the circumstances of the case – a “bottom up “approach.

The judge in the High Court looked at the decisions to exclude in detail. He ruled that the employer had not applied the proper test in deciding whether to exclude her; that total exclusion from work was not necessary and exclusion was not a proportionate response. The employer had failed to consider the consequences of the exclusion, including the impact on patients.

The judge ruled that, overall, the decision to exclude Professor Jahangiri was “irrational in the public law sense”, previously defined in a 1985 case as a decision “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” The High Court judge therefore ordered that Professor Jahangiri should be allowed to return to her post and care for her seriously ill patients.

In a 2012 case involving the suspension of two long serving NHS nurses, the Court of Appeal criticised “knee jerk “ decisions by employers to suspend employees. The two nurses were dismissed but the Court of Appeal endorsed an Employment Tribunal decision that the dismissals were unfair.

In that case, Crawford v Suffolk Mental Health Partnership, L J Elias said it seemed to him that suspension was the “almost automatic response “of many employers, irrespective of the likelihood of a complaint being upheld. He pointed out that although suspension is sometimes stated to be in the employee’s best interests, the suspended employee can feel belittled and demoralised by the total exclusion from work. Even employees who are totally cleared of charges can still be the object of lingering suspicions, as a suspension can add credence to allegations. The suspension itself can damage an employee’s reputation, even if they are subsequently vindicated.

There are other downsides for the employer to suspension. Employees are normally entitled to receive their full pay and benefits during a period of suspension, so the employer is receiving no benefit for that expenditure. In Professor Jahangiri’s case her lawyer reportedly told the court that two weeks away from her role in which she performs difficult cardiac surgery was enough to cause her complex skills to lapse, which was why she never has more than two weeks off work. Professor Jahangiri told the court in a statement that a difficult operation on a seriously ill patient had to be cancelled on the day of her exclusion, and that other patients might have to be cancelled with patients not being told the reason why.

ACAS in its code of practice states that suspension should never be an automatic approach for employers dealing with disciplinary matters. Other options should be considered, including a temporary adjustment to the employee’s working arrangements such as moving them to work elsewhere; changing their hours; placing them on restricted duties; removing them to a different role. The code also emphasises that the suspension and the need for it should be kept confidential, where possible, and that the employer should discuss with the employee how they would like it to be explained to colleagues and /or customers.

Jean Sapeta
Consultant Lawyer

0203 137 4805
jean@eastwoodslaw.co.uk