Whether a police investigation must stop a disciplinary process is a question we are asked on a regular basis by clients. The Court of Appeal has provided helpful guidance in North West Anglia NHS Foundation v Gregg.
Dr Gregg, a consultant in anaesthetics for North West Anglia NHS Trust (“the Trust”), was suspended in April 2016 following an internal investigation into patient deaths. Following initial investigation into Dr Gregg’s conduct, the investigation officer found enough evidence to progress the matter to a full disciplinary hearing. At the same time, and owing to the nature of the suspension, Dr Gregg’s registration to practice medicine was suspended from May 2017.
Given the serious nature of the allegations against Dr Gregg, the police initiated a criminal investigation and confirmed to the Trust in June 2017 that they had no objection to the Trust proceeding with its own internal investigation in parallel. In turn, Dr Gregg’s solicitors objected to him attending the internal disciplinary interview and requested that the internal proceedings be put on hold, as Dr Gregg could potentially prejudice himself in respect of any future criminal proceedings.
As Dr Gregg’s medical registration had been suspended, and he was therefore unable to work, the Trust suspended Dr Gregg’s pay from 1 September 2017. In November 2017, Dr Gregg issued a claim in the High Court to seek an injunction to stop the investigation by the Trust and to seek a declaration over the non-payment of salary. Both were granted. As a result of the High Court’s findings, the Trust was now in a position where it would be required to wait until the completion of the criminal prosecution before proceeding with its internal disciplinary process. Unsurprisingly, the Trust appealed the High Court’s judgment.
The Court of Appeal (CoA) looked at whether there was a breach of the implied term of trust and confidence by the Trust in wanting to progress its disciplinary process before the police had concluded an investigation. It concluded that the High Court had applied the wrong test in granting the injunction, stating that “the judge repeatedly equated the implied term of trust and confidence with a more generalised obligation to act fairly”. The test of whether the implied term is breached is a “severe” one which must “destroy or seriously damage the relationship”.
Looking at the facts of the case, it was clear that this was an extremely difficult and sensitive issue and the Trust had worked hard to make the best of an already difficult situation. The CoA also highlighted that an internal disciplinary process had a very different focus to criminal proceedings. The burden of proof in disciplinary proceedings is only a genuine belief based upon reasonable grounds; in criminal proceedings the test is beyond reasonable doubt. This requires a completely separate approach to investigations. The Trust had a contractual disciplinary process which it wished to exercise, and it was reasonable to do so in the circumstances. The CoA found for the Trust and allowed the appeal on this matter.
The CoA also determined that the Trust could have terminated Dr Gregg’s employment based upon the withdrawal of his Licence. However, it held that this was not a straightforward route, and any termination because of the suspension on his licence and registration carried a real risk of being a breach of contract or unfair dismissal and a fair process would need to be carried out before such a decision could be reached.
In the matter of the suspension without pay, the CoA agreed with the High Court – the Trust were not entitled to withhold Dr Gregg’s pay. The CoA considered the case law and looked at Dr Gregg’s contract which did not permit the deduction of pay in an “interim, non-terminatory” suspension. There were no express or implied terms which allowed this. In addition, case law shows that if Dr Gregg was “ready, willing and able” to work, and his inability to work was the result of a third-party decision (here, his registration being suspended) then this, coupled with the lack of express or implied contractual term, meant that the suspension of pay was unlawful.
What does this mean for you or your business?
This judgment consolidates the current position for employers and shows that it is not usually necessary to put a disciplinary process on hold if there is a criminal investigation.
There are a number of cases for employers where it may be necessary to involve the police at the same time as conducting a disciplinary process – for example, theft, fraud or assault, and it is important to make sure that processes are followed and HR and line managers are trained to spot when such a situation arises.
However, above all, it is important to make sure that proceeding with such a process does not lead to an unfair hearing.
In addition, if there is no contractual right to suspend without pay, it is unlawful to do so. Follow your own internal processes and policies and seek legal advice where necessary.
What do you need to be doing now?
Review your policies, procedures and contracts to check suspension rights, and rest a little easier that you can discipline if there is an ongoing police investigation.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.