The Court of Appeal has held in North West Anglia NHS Foundation Trust v Gregg that employers do not need to wait until a police investigation has been completed before initiating their own disciplinary procedures unless they do so with the aim of destroying or seriously damaging the relationship with their employee.
After the deaths of two patients, Dr Gregg, a consultant anaesthetist, was suspended and a police investigation started. His registration as a medical practitioner was also suspended by the Interim Orders Tribunal (IOT) of the Medical Practitioners Tribunal Service, meaning that he could not practise.
About 18 months after his suspension from his job, the Trust stopped paying him. It also continued its internal disciplinary process despite an ongoing police investigation into the deaths.
Dr Gregg brought proceedings in the High Court seeking an injunction against the Trust with regard to its ongoing investigations (which he argued was in breach of the implied term of trust and confidence) and the decision to stop paying him his salary.
High Court decision
The High Court granted an injunction preventing disciplinary proceedings pending the end of criminal proceedings on the basis that the Trust was in breach of contract, namely, a breach of the duty to maintain trust and confidence:
- for failing to pay his salary during the period when he was suspended by the IOT;
- for proposing to hold a hearing to discuss terminating his contract on the basis that he no longer held the requisite registration; and
- for pursuing their own internal disciplinary process in parallel with an investigation by the police, rather than delaying it until it was complete.
Decision of Court of Appeal
The Court of Appeal dismissed the Trust’s appeal with regard to the issue of payment, holding that there was no basis on which to imply a term into Dr Gregg’s contract whereby it could deduct pay following his suspension. As the point of the suspension was simply to preserve the status quo until more was known, it was quite different from a suspension imposed by way of sanction. Indeed, the Trust itself had described it as "a neutral act”. As Dr Gregg was “ready, willing and able” to work, the Trust was still under an obligation to pay him.
However, on the second ground, the court considered that the judge was wrong to find that the Trust would be acting unfairly in inviting Dr Gregg to a hearing to discuss the possibility of terminating his contract because of his failure to maintain his licence, not least because the Trust was not obliged to hold such a hearing at all. Instead, it could simply have terminated his contract. Although that might have prompted an argument about whether they were entitled in law to do so, that was not the same as saying that holding a hearing in advance of taking such a decision was or could be unfair.
On the third issue, it held that the judge had applied the wrong test when deciding that the trust was in breach of the implied term of trust and confidence for pursuing its own internal process rather than waiting for the police to finish their investigations. Rather than equating the implied term of trust and confidence with a more generalised obligation to act fairly, the Court should have considered whether the conduct was “calculated to destroy or seriously damage the relationship" and then, even if it was, whether there was "reasonable and proper cause" for that conduct. As the Trust was simply following its own disciplinary procedures, the test was not satisfied.
This case highlights that an employer will only be required to postpone a disciplinary hearing pending the outcome of a police investigation into an employee in exceptional circumstances. This requirement is only likely to arise where the employee can show that the continuation of the internal proceedings gives rise to a real danger of a miscarriage of justice in the criminal proceedings. Here, there was reasonable and proper cause for the Trust’s conduct in that the Trust was following its own contractually-binding disciplinary procedures and the doctor was himself contractually obliged to engage in the disciplinary process and the Court held there was no real danger of injustice that would justify an injunction.