Disciplinary Investigations pending the outcome of a police investigation

In the case of North West Anglia NHS Foundation Trust v Gregg, the Court of Appeal considered the question of whether an employer must postpone a disciplinary hearing pending the outcome of a police investigation. The conclusion in this case was no, there was no requirement to postpone.

The Claimant was employed as a consultant in anaesthetics by the Trust. Following the death of two patients under his care, an internal investigation was undertaken and disciplinary action was recommended. He was suspended on full pay and the case referred to the General Medical Council (GMC). Shortly after, a police investigation commenced and the Interim Orders Tribunal (IOT) (a professional disciplinary body for the medical profession) investigated, temporarily suspended the Claimant’s registration and withdrew his licence for 18 months. During his suspension, the Trust continued in pursuing their internal disciplinary process in parallel with the police investigation and informed the Claimant of their intention to hold a disciplinary hearing to discuss the termination of the Claimant’s contract for failing to hold the required registration. The Claimant refused to attend the disciplinary hearing and requested the process be put on hold until the outcome of the criminal investigations. The Claimant brought proceedings.

The Court found in favour of the Claimant on all the substantive issues and granted an injunction preventing the Trust from continuing its internal investigations until the police investigations had been concluded. The Court granted the injunction on the basis that continuing with the disciplinary process would breach the duty to maintain trust and confidence. The Trust appealed.

The Court of Appeal considered three issues: (1) the entitlement of the Trust to cease pay while suspended, (2) termination of employment, and (3) the injunction granted to put on hold the internal investigations proceedings.

1. The Court of Appeal agreed with the High Court that the Trust were not entitled to withhold the Claimant’s pay during the interim suspension. Suspension is now a feature of life for medical practitioners, if the contract intended suspension without pay during suspension, it would have said so (and didn’t). The Claimant was ‘ready, willing and able’ to work, and the IOT suspension was involuntary, this would not permit unpaid suspension in all but exceptional circumstances.
2. The Trust claimed that in addition to his misconduct, the Trust could terminate the Claimant’s employment on the basis that he did not have the necessary registration to continue his role. The issue was whether they could hold the disciplinary hearing to consider this termination. The Court of Appeal held the judge was wrong to find that the proposal to have a hearing to address possible termination because of failure to maintain his licence was unfair. The contract allowed for alternative grounds for termination, and starting one process in relation to dismissal for conduct did not prevent the Trust from investigating another ground.
3. Crucially, the Court of Appeal concluded that the injunction was wrongly granted. The wrong legal test was applied and had the correct legal test been applied, there was no basis to find a breach of the implied term of trust and confidence. Here the Trust was following its own contractually-binding disciplinary procedures; the Claimant was himself contractually obliged to participate in the disciplinary process. Only a real danger of injustice would justify an injunction and this was not the case here.

While the facts of this case are specific and relate to very serious allegations within the medical profession, it is clear that an employer will not be seen to act unfairly were they to continue with internal disciplinary investigations notwithstanding ongoing police investigations.