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Case update (1): Disciplinaries – What if there is a Police Investigation?

Summary:  Does an employer breach the implied duty of trust and confidence by proceeding with a disciplinary investigation whilst there is an ongoing police investigation?

No, says the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg available here.  Only in very limited circumstances is there any requirement on an employer to delay pending the outcome of a police investigation.

Facts:   The employee, Dr Gregg, was a Consultant Anaesthetist employed by North West Anglia NHS Foundation Trust (the Trust). Following the death of two patients under Dr Gregg’s care, the Trust notified the police and commenced disciplinary proceedings pursuant to Maintaining High Professional Standards (MHPS).  Dr Gregg’s registration was suspended and his licence withdrawn.

Whilst the police investigation was ongoing the Trust decided to proceed with the disciplinary hearing. Dr Gregg objected to attending internal disciplinary interviews whilst the police investigation was ongoing and did not participate in the disciplinary proceedings.  He said that he was concerned that he would be prejudicing himself in the police investigation. The Trust nevertheless decided to proceed with the disciplinary allegations and tried to stop Dr Gregg’s pay on the basis that Dr Gregg could not fulfil his contractual duty to be ready, willing and able to perform the work he was employed to do. The Trust also relied on MHPS which provides discretion to suspend a doctor’s salary when s/he is unavailable for work.

Dr Gregg brought proceedings in the High Court. The High Court granted an injunction preventing the Trust from continuing its internal investigation into the patient’s death whilst the police investigation was ongoing. The Court stated that the Trust’s refusal to adjourn the disciplinary process was a breach of the implied term to maintain trust and confidence within Dr Gregg’s employment contract. The High Court also found that the Trust was in breach of contract for not paying Dr Gregg’s salary during the interim suspension period

The Trust appealed to the Court of Appeal which disagreed with the High Court. The Court of Appeal emphasised that an implied term of trust and confidence is not an implied term to act fairly. The Court of Appeal acknowledged that it is often impractical to wait until a criminal trial takes place before making a decision on the employee’s future employment and confirmed that there is no absolute rule stating that an employee cannot be dismissed before their criminal trial.

However, the Court of Appeal upheld the High Court’s findings that Dr Gregg should have been paid full pay during his suspension. Importantly, the Court of Appeal warned that employers should exercise caution before concluding that an employee could be characterised as avoidably or voluntarily unable to work in such circumstances because to do so would stray uncomfortably close to an assumption of guilt.

Implications: This is helpful guidance for employers when faced with dealing with misconduct allegations and police investigations. Employers are not required to wait for the conclusion of the police investigation, unless such course of action would give rise to a real danger of a miscarriage of justice.

However, this decision does confirm that employees must receive full pay during any period of suspension unless there is an express contractual right to withhold it or exceptional circumstances (such as a complete or part admission of guilt). This remains the case even where a relevant licence has been temporarily suspended by an external body, resulting in the employee being unable to practice until their licence is reinstated.

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