England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
(HIS HONOUR JUDGE WALTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th October 2008

Lord Justice Lawrence Collins:

Introduction

1. For any person to be suspended from his or her employment pending the investigation of allegations of misconduct is a serious matter. It casts a shadow over the employee, and suspension is particularly serious if the person involved holds a public position or, as in this case, a position in higher education and especially so if the suspension drags on for an extended period while investigations are being made or a disciplinary process is being pursued.
2. The claimant, Professor Robert Watson, has been a professor at Durham University Business School since 2004. The defendant is Durham University, and this application for permission to appeal, with appeal to follow if permission granted, arises from his unsuccessful attempt to obtain an injunction restraining the university from continuing the suspension from duty which it imposed on 17 December 2007.

The background

3. The circumstances of Professor Watson's suspension begin with the events which led to the resignation of Professor Antonios Antoniou, who was until September 2007, the Dean of the Business School. Professor Antoniou stood down as the Dean on 4 September 2007 following allegations of plagiarism against him which were made a few months earlier. The allegations related to the PhD which he had obtained from York University, of which he was stripped in November 2007, and to a journal article written when he was at Brunel University.
4. After Professor Antoniou stood down as Dean on 6 September 2007 Professor Christopher Higgins, the Vice Chancellor and Warden of Durham University, had a meeting with all business school staff to discuss interim management arrangements. Professor Higgins says that Professor Watson was present at that meeting and raised queries about the allegations against Professor Antoniou but was told that details should not be made public and that the matter should not be discussed internally or externally in order not to prejudice any investigation. A week or two later, Professor Higgins attended a Business School Board of Studies meeting where he again emphasised that matters concerning Professor Antoniou should not be discussed internally or externally and that indirect accusation or harassment of those associated with Professor Antoniou was inappropriate.
5. The story regarding Professor Watson begins around 22 October 2007 when Mr Boyd, the director of HR at the university, reported to Professor Higgins that he had been informed of certain allegations against Professor Watson and, in particular, that he had made racist comments, comments against Professor Antoniou and had been criticising the university's handling of the Antoniou affair. A few days later Mr Boyd and Professor Higgins met Professor Watson and confronted him with these allegations, which he denied. The Antoniou affair became public on 2 November 2007 when The Times Higher Educational Supplement reported that he had been suspended and faced disciplinary action concerning the journal article written when he was at Brunel and that York University was investigating plagiarism in his PhD thesis.
6. Professor Higgins, in his witness statement, says that on 5 November 2007 he and the Pro-Vice-Chancellor for Research, Professor Stirling, addressed the Business School Board of Studies and told them that the publications of those who had worked with Professor Antoniou were valid and should be included in the research assessment exercise and that discussion and comment about those associated with Professor Antoniou would constitute harassment.
7. Professor Higgins says that on about 10 November 2007 he was contacted by a junior academic who wished to see him following his statement to the meeting, and a few days later Mr Boyd, the director of HR, and Professor Higgins met the junior academic, Mr Alexandridis, who claimed, according to Professor Higgins' witness statement, harassment, bullying and racist comments by Professor Watson. There is a file note of this meeting, the main elements of which, so far as Professor Watson's comments are concerned, are about the allegations of plagiarism.
8. Around this time, for reasons which are not explained in the papers, the university began to make enquiries about the genuineness of Professor Watson's PhD from Manchester University and from 22 November -- and the date is of some significance -- Mr Boyd was in contact with the Durham University librarian about Professor Watson's PhD; and the enquiries consisted of, it seems from the various e-mails, looking up databases of the British Library and of Manchester University to see if there was a relevant thesis by a Robert Watson. This seemed to me a rather peculiar way of investigating whether somebody had a PhD from the University, when the obvious way of finding out was not databases about theses, but taking steps to see whether the degree had been awarded.
9. On 26 November 2007 another junior academic, Emilios Gariolitis, also met Mr Boyd and made some allegations about Professor Watson, which were said to constitute racist remarks. Again the file note of the meeting is mainly concerned with Professor Watson's comments about the association of the academic with Professor Antoniou and his plagiarism, but the file note also indicates that the academic said about a female colleague: "Who does she think she is -- just because she sleeps with the Dean -- Madam Mao?" And that is said, because that was said in earshot of someone who might have been Chinese, to be a racist remark. It seems to me that, although it may have been extremely insulting to the person involved to be classified as someone sinister behind the scenes, nothing could be further from a racist remark.
10. On 3 December the e-mails about Professor Watson's PhD, which were circulating internally, culminated in an email from Mr Boyd of HR to the Registrar, which said:

"I have spoken to Simon Parker this afternoon [I think he is a member of the staff at the Business School]. Apparently there is a Robert Watson with a PhD from Manchester in 1994 but in Physics. This Robert Watson has a different middle initial from our RW, who apparently has a middle initial of E. Not sure what this stands for…and so I will need to check our USS records as it's not in his CV. Other developments are that his PhD title is apparently the same as an MSc he supervised, which in the absence of dates begs the question of who was plagiarising whom!"

The later allegation of Professor Watson not having a PhD is in fact said by Professor Higgins to have originated on 11 December, when he received an anonymous letter suggesting that Professor Watson did not have a PhD, but in fact it is quite apparent from these e-mails that the University was investigating this question from at least 22 November.

11. On 11 and 12 December Professor Higgins left telephone messages with Professor Watson with a view, he says, to further discussing the question of whether Professor Watson had a PhD, and on 12 December, having failed to reach Professor Watson, he sent an e-mail which said:

"I have tried to contact you by phone and have left messages but have had no response. Additionally, your Head of Department says you have not requested permission to be absent from Durham so I must assume you are available.

I have had a written allegation that you have not got a PhD as claimed on your cv. The University will be investigating this and taking action as a matter of urgency unless you can quickly dispel this allegation with proof of your degree.

Additionally we suspect that rumours of this allegation may begin to circulate within [the Business School] and so, if there is no substance to the allegation it is critical to clarify immediately to protect your reputation."

12. Professor Higgins says that, when he received no reply, he contacted Professor Watson at home, when Professor Watson agreed to produce a copy of his certificate, and on 13 December Professor Watson did submit a copy of his degree certificate.
13. On 16 December Professor Watson sent an e-mail which was addressed to Professor Higgins, with copies among others to Mr Boyd, but also, judging from the address, to a large number of people at the Business School, and since this e-mail is of some significance in the later events I shall quote some paragraphs of it:

"Though I began to feel that life had taken something of a Kafkaesque turn, undeterred I provided the University with the contact details of the external examiners and a copy of the PhD certificate. I contacted Manchester's Registrar on Friday morning and within two hours they were able to confirm that I did indeed have a PhD.

The Manchester University officials that I spoke to were horrified at the suggestion that anyone at the University would have given any (even true) information out over the phone regarding anyone's academic record -- it is illegal under the Data Protection Act. Moreover, Manchester has launched an official investigation into the incident but are very confident (because all phone calls are logged) that no one from Durham actually phoned or was given information about my PhD from any competent authority at the University. So who the hell did Durham's HR/VC actually talk to at Manchester -- the janitor? Whoever, Manchester would very much like to know as this person committed a criminal act."

Then he goes on:

"This lack of support from the University [that is, Durham] is very perplexing and disappointing. Indeed, I believe that the way the University has handled this matter has been appalling from the outset and the refusal of the Vice Chancellor to issue a statement that the allegation is false has been deeply prejudicial to my interests."

14. On the following day Professor Higgins met Mr Boyd and they decided to undertake a preliminary investigation and to suspend Professor Watson. They referred to the statements from the two junior academics and they agreed that Professor Watson's behaviour was outrageous and inconsistent with being a senior professor at Durham, and then they talk about the episode of the PhD and I quote:

"Bringing Durham into disrepute?

Calling [Vice Chancellor] a liar in circulated email. Re allegations made about PhD, they needed investigation. Should have been simple to clear up. PhD Manchester was in his CV.

No title of thesis -- very unusual.

Many Watsons but only one PhD thesis and by a physicist?

Therefore not unequivocal as claimed by [Professor Watson].

[Vice Chancellor] right to ask [Professor Watson] to clarify."

15. On the same day Mr Boyd met Professor Watson and informed him that he was being suspended and a formal letter was sent on that day to say that he was being suspended because of complaints made to the Registrar and drawn to the attention of the Vice Chancellor which related to:

"1. intimidation and harassment of staff within the business school and the university 2. racist behaviour and 3. making unfounded allegations of criminal behaviour against university staff dealing with allegations regarding the validity of your qualifications."

The last point was swiftly withdrawn and in particular Professor Clark, a professor at the University, informed the business school staff that Manchester University confirmed that Professor Watson had been awarded a PhD and that the matter had been cleared up, although he remained suspended pending investigation of the other matters. It was also accepted that the e-mail from Professor Watson did not in fact contain any allegations of infringement of the Data Protection Act by members of Durham University as distinct from officials or members of the staff of Manchester University.

Proceedings and the judgment

16. The proceedings in this case began by a claim form issued by Professor Watson against the University on 15 January of this year. It applied:

"for a freestanding injunction restraining the purported suspension on 17 December and an order requiring disclosure of documents relating to complaints against Professor Watson."

There was a short form of affidavit in support stating that the complaints, including the false allegation about his doctorate, were completely without foundation and were meant to silence and punish him and damage his reputation for raising concerns about Professor Antoniou and that the university's refusal to provide information about the complaints was completely unfair.

17. On 30 January of this year HHJ Walton, sitting as a deputy High Court judge in Newcastle, decided that he did not have jurisdiction to grant an injunction because the claim had been put solely on the ground that the court had a wide discretion to intervene to grant injunctions as might be just in all the circumstances. The court did not have jurisdiction to grant an injunction on that basis and, notwithstanding that he had encouraged the claimant to consider further the way in which the case was put, he had been urged to proceed and therefore decided on that basis.
18. At that hearing Professor Watson was represented by Dr Reader, who is employed by the university and has a law degree although she is not a lawyer nor in the law faculty. This is an application by Professor Watson for permission to appeal from the judgment. The application was adjourned on 9 June this year by Jacob LJ to be heard on notice, with the appeal to follow if permission were granted.

Arguments

19. On Professor Watson's side Mr Hyams accepts that, for the court to grant an injunction, there must be a cause of action in support of which the injunction is to be granted. It is now said that there was at all relevant times a claim for breach of contract and that, firstly, there is an arguable case that the university was in breach of contract in suspending Professor Watson; secondly, that damages are not an adequate remedy; and thirdly, that the balance of convenience favours an injunction. It is argued that there was a good and more arguable case that the suspension was a breach of the implied term of trust and confidence for the following main reasons. Firstly one of the justifications stated for the suspension, namely that Professor Watson had alleged criminal wrongdoing on the part of a member of the staff, was patently unfounded. Secondly, the allegation of racist comments was made months before the suspension. Thirdly, the investigation, such as it was, into that allegation had been carried on unimpeded by his presence in the workplace. Fourthly, the allegation of intimidation was similarly investigated without his presence in any way inhibiting the investigation. Fifth, the allegation that he did not have a PhD was made without foundation, and was made in such a way that his response was entirely reasonable, and his conduct in sending the email complained of could not properly be said to have justified the suspension. Sixth, the treatment by the university of Professor Antoniou was markedly different from that of Professor Watson in that allegations about plagiarism by Professor Antoniou were made months before he was suspended, whereas as soon as the university received an anonymous letter about Professor Watson's PhD, he was given less than a day-and-a-half to prove that he had one and was put under enormous pressure and then suspended immediately after his angry reaction.
20. The arguments put on behalf of the university were these: The judge was right to refuse the injunction because Dr Reader presented Professor Watson's application on the basis that there was no need for an underlying cause of action such as breach of contract and she several times clearly stated that the claim was not one for breach of contract and the authorities on which she relied were not breach of contract cases. Dr Reader and Professor Watson declined the opportunity offered for an adjournment in order to consider whether to reformulate the basis of the application and the judge was not obliged to assist him by formulating a basis for the application which was different from the way it was presented on his behalf, and he was therefore entirely right to find that he had no jurisdiction to grant a freestanding injunction. If the judge did have jurisdiction then there is no arguable case for breach of contract, because the power to suspend is very wide, and there were proper grounds here for suspending Professor Watson even though the university accepts that it was wrong to conclude at the time of suspension that Professor Watson had in his e-mail suggested criminal behaviour on the part of the university. As regards the balance of convenience, the disciplinary hearing against Professor Watson is fixed for the week after next and it would be undesirable now for the suspension to be lifted for only a very short period before the hearing even though the suspension has already lasted a significant period.

Conclusions

21. I come to my conclusions. I can well understand why the judge came to the conclusion which he did. It is well established that an injunction cannot be granted merely because it is just to do so: see among many others Siskina v Distos Cia Naviera [1979] AC 210. Mr Hyams, for Professor Watson, accepts that the basis put forward for the injunction by Dr Reader cannot be supported, but it is clear from the rival accounts of the hearing that Dr Reader did in fact tell the judge that there was a claim for breach of contract, although she resisted the judge's suggestion that she should base her claim to injunction on that breach. I have the greatest sympathy for the judge, who was asked to deal with the matter at great urgency in a very short hearing, but I consider that he should not have been deterred by the incompetent presentation by Dr Reader of Professor Watson's case from deciding the claim on the correct basis. There is no doubt that the facts alleged by Professor Watson, if true, would have resulted in a claim for breach of contract. The following therefore are the issues today. First, is there a real prospect of success in a claim for breach of contract? Second, are damages an adequate remedy? Third, where does the balance of convenience lie?
22. Paragraph 14(d) of the Statutes of the University provides that if a complaint is referred to a formal hearing the Vice-Chancellor has power, if he sees fit, to suspend the member on full pay pending a final decision. The Statutes form part of Professor Watson's employment contract. This court is concerned only with the good arguable case test but I doubt if it would be controversial to say that, firstly, an employer's right to suspend an employee must not be exercised on unreasonable grounds: see for example the decision of Mr David Neuberger QC, as he then was, sitting as a Deputy High Court judge in McClory v the Post Office [1993] 1 All ER 457. Second, where there is no reasonable and proper cause for the employer's action, suspension may amount to a breach of the implied term of trust and confidence: see Gogay v Hertfordshire County Council [2000] IRLR 703. Third, because unlawful suspension may not be fully healed in damages that an injunction may the appropriate remedy: see for example Mezey and South West London and St George's Mental Health NHS Trust [2006] EWHC 3473 QB
23. I do not wish in any way to prejudge any of the hearings in the disciplinary process. If indeed Professor Watson was guilty of racism or intimidation of staff, that would be a very serious matter. The only question for this court is whether there is a real prospect of Professor Watson in succeeding in a claim that the university was in breach of contract in unreasonably exercising its power to suspend. In my judgment there is an arguable case for breach of contract and a real prospect of success: in particular that Professor Watson's response to the allegation that he had lied about his PhD qualification was used as an excuse to suspend him because he was being difficult about the Antoniou affair. That case would be supported by these factors. The allegations of racism, some of which were plainly extremely weak, such as the statement about Madam Mao, had been made in October and November without any action. The allegation about the PhD was said to have been made in an anonymous letter on 11 December when in fact the university had been making investigations about it since 22 November. The letter of 12 December to Professor Watson about his PhD is extremely hypocritical in referring to the fact that "it is critical to clarify immediately to protect your reputation" and finally the extreme reaction to what was said to be an allegation, now withdrawn, of breach of the Data Protection Act by Durham University employees.
24. This is a case in which damages are plainly not an adequate remedy. So far as the balance of convenience is concerned the disciplinary proceedings have dragged on. The suspension letter suggested that the investigation might be completed before the end of January but it is now due to take place the week after next. In my judgment it would be unfair to deprive Professor Watson of his remedy because the judge failed to exercise his discretion as long ago as January of this year. The only point relied on by the University is that Professor Watson might interfere with witnesses. But suspension could not affect that, and any possible damage to the university and the Business School which might be apprehended by his presence is removed by the undertaking, which is offered on his behalf, not to attend at the university until the disciplinary proceedings are terminated.
25. I would therefore grant permission to appeal, allow the appeal and grant an injunction on Professor Watson's offered undertaking.

Mr Justice Hedley:

26. I agree with all that my Lord has said and have nothing useful to add to it.

Lord Justice Sedley:

27. I too agree. The judge was certainly not helped by a claim form that said no more than that the claimant was suspended from work on 17 December 2007 and that he claimed an injunction restraining the purported suspension. The university, as one would expect, had behaved responsibly in putting in evidence which in the first line of its substantive part said "The claimant is employed by the university" and went on to refer to the Statutes to which my Lord has referred. There was quite enough there, in my judgment, to put the judge on notice that there was, however fully presented, a claim in breach of contract and material upon which he was able to adjudicate as to whether there should be an injunction.
28. For the reasons given by my Lord I too agree that there should have been, and I too would grant, an injunction in the form proposed.

Order: Appeal allowed