Injunctions: when can an employee stop us from suspending them?
In certain circumstances, employees can ask the courts to step in to stop their employer suspending them, or to reverse a decision to suspend. This…
In certain circumstances, employees can ask the courts to step in to stop their employer suspending them, or to reverse a decision to suspend. This will usually be on the grounds that the suspension amounts to a breach of contract.
The High Court has recently considered this issue and whether it should grant an injunction preventing an employer from suspending a member of staff. In Blackstock v University College London the High Court found there was a seriously arguable case that the University breached its contractual obligations by suspending Mr Blackstock from work and barring him from his professional email account. However, whilst damages would not be an adequate remedy, it was not just and convenient to grant an injunction. Lifting the suspension on the employee, the High Court found, would in this case put staff at risk.
Mr Blackstock was an employee of University College London and Head of the Science and Technology Department. In March 2018, following a review of his behaviour and conduct, it was found that Mr Blackstock had been accused of bullying and had a poor leadership style, which had a negative impact on colleagues. After being demoted from his position as Head of Department he allegedly continued to intimidate staff and attempted to get his name on academic work that he had not contributed to. Mr Blackstock was subsequently suspended from work for breaches of contractual duty and was also barred from accessing his work emails.
Mr Blackstock made an interim injunction application to prohibit the University from suspending him from his duties and barring him from his professional email account.
The seminal case of American Cyanamid Co v Ethicon Ltd (No.1) sets out the following questions that a court should consider when deciding whether to grant an injunction:
- Is there a serious issue to be tried?
- Would damages be an adequate remedy?
- Where does the balance of convenience lie?
The University submitted that Mr Blackstock was seeking a mandatory injunction to lift the suspension, rather than preservation of the status quo, and they argued that the Court should look at whether there was a serious issue to be tried rather than for a high degree of assurance that Mr Blackstock would win at trial.
Mr Blackstock’s application for an interim injunction was refused.
The Court determined that although the applicable test to be applied was that set out in American Cyanamid, more weight should be given to a provisional assessment of the merits than would be necessary on a purely Cyanamid basis. This was because it was unlikely that the parties would want to argue the scope of Mr Blackstock’s suspension at trial.
The status quo was that which existed prior to the University's alleged breach, not afterwards. Taking each of the questions it had to consider the Court decided:
Was there a serious issue to be tried?
The Court found that the issue of whether suspension was in breach of the University's contractual obligations was a serious one. It was seriously arguable that the decision to suspend had breached the University's disciplinary policy, which required that Mr Blackstock should have an opportunity to comment on the allegations made against him. There was an issue as to the validity of the suspension and whether it was in breach of the University's duty of trust and confidence. Mr Blackstock had a real prospect of success that his suspension was in breach of contract.
Would damages have been an adequate remedy?
No. There would have been serious damage to Mr Blackstock’s reputation and career if the suspension was not lifted.
Where does the balance of convenience lie?
The University maintained that staff had to be safeguarded and that if Mr Blackstock kept his teaching duties, then students and staff would be put at risk. On balance, and despite criticisms made about the University’s conduct in this case (see below), the Court decided that the risk of harm to Mr Blackstock in refusing the application was less than the risk of harm to the University and its staff if the Court were to grant the injunction. Therefore Mr Blackstone’s application for an injunction was refused.
What does this mean for me?
Employers should draw some comfort from this case as the Court decided that an employer should not be prevented from suspending employees where there was a risk of harm to staff and the employer.
However, the Court was critical of the University in a number of respects, namely:
- In the absence of a copy of the written contract of employment, it was difficult for the Court to determine the terms of the contract. It was not clear if the University’s two disciplinary policies were incorporated into Mr Blackstock’s contract of employment. The University might have been able to head off this application earlier if it could have shown that its disciplinary policies were not incorporated into the contract of employment
- An employer should ensure there is independence between any complainant and the decision-maker in the disciplinary process. Here the Court were critical that the complainant was the person making the decision to suspend;
- The Court reiterated that the scope of any suspension should only be reasonably imposed on areas of Mr Blackstock’s work that were impacted by the matters under investigation. In this case there was a blanket suspension which included a bar on Mr Blackstock’s access to any of his emails. The Court noted the employer’s concern that Mr Blackstock might tamper with evidence; however there ought to be other means available to the employer to address this rather than a blanket ban on access to his emails.
Paul McFarlane is a Partner in the Employment, Pensions and Immigration Team and is based in London. If you have any questions please do not hesitate to contact Paul or speak to your usual Weightmans advisor.