The High Court has restrained Certus from making findings about whether Rosemarie Gallagher followed another occupation before a full disciplinary hearing, while allowing the company to continue gathering evidence. The order is interim and does not stop an investigation or disciplinary action altogether.
Mr Justice Michael White delivered the judgment on 17 September 2013, after a hearing on 4, 9 and 10 September. Gallagher had brought proceedings seeking injunctive and declaratory relief over a proposed investigation and possible disciplinary inquiry connected to her employment and income protection benefit.
Gallagher, who had worked as a banking executive, was diagnosed with multiple sclerosis in 1991 and left work in 1998. She received monthly payments under a long-term illness benefit arrangement until April 2013. The parties disputed whether the benefit was an employment entitlement or depended on insurance cover. Gallagher’s employment had transferred from ICC to Bank of Scotland (Ireland), and later to Certus.
Aviva, the insurer, suspended future benefit payments to Certus from 28 March 2013 while seeking further information about Gallagher’s involvement with Citywide Consultants and Mediators and any mediation work. Gallagher told Certus she was a director of the company, which she described as a vehicle for collecting rent. She said she did not work for it, received no income from it and had no alternative occupation. Aviva’s correspondence alleged that public information suggested her account was inaccurate; the judgment records that Aviva did not specify that information in its 2 April letter.
Certus began a fact-finding investigation into whether Gallagher had engaged in another occupation while certified unfit for work and receiving income protection benefit. Gallagher argued that the process was unclear and risked prejudicing her, particularly because Aviva had already suspended payments. Certus said it was entitled to investigate and that safeguards were in place. The judge found nothing objectionable in the questions Certus sent in July, which Gallagher had not answered.
The judge concluded there were serious issues about the process and a risk of irreparable harm if it continued in its existing form. He ordered, pending the full hearing, that Certus must not make findings, factual conclusions or determinations that Gallagher followed another occupation, including one for remuneration or profit, before a full disciplinary hearing. The order expressly permits Certus to gather evidence and information, including from Gallagher.
The court did not decide the disputed contractual relationship or whether Certus must continue payments. It also declined to stop an investigation or disciplinary hearing, provided any process complies with the injunction and safeguards already offered. The injunction was an interlocutory measure pending the full hearing, not a final determination of the underlying claims.