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Disciplinaries: Should disciplinary proceedings be postponed during a criminal investigation? When can employers suspend without pay?

03 April 2019
Commercial Law
In the case of North West Anglia NHS Foundation Trust v Gregg the Court of Appeal overturned the High Court’s injunction preventing the Trust from continuing with internal disciplinary proceedings pending a police investigation.  

Background

Employers faced with an employee involved in a criminal investigation, especially one relating to conduct at work, invariably wish to continue with the internal disciplinary proceedings, rather than wait for the outcome of the criminal investigation or prosecution.  The delay and continued suspension on full pay versus challenges on prejudgment and fairness are troublesome questions for employers.

 

Facts

Mr Gregg was appointed by the Trust in 2003 as a consultant anaesthetist.  In January 2016 a patient under Mr Gregg's care died in the intensive care unit.  Mr Gregg was alleged to have hastened the patient's death and so was suspended on full pay and a disciplinary process began.  The disciplinary process was put on hold due to the involvement of the police and the General Medical Council.  An investigation into a second patient's death began in February 2017.  In May 2017 an Interim Orders Tribunal met and temporarily suspended Mr Gregg as a doctor for a period of 18 months.  From 1 September 2017 the Trust stopped Mr Gregg's pay.  The Trust began paying Mr Gregg again in October 2017.  The Trust subsequently sought to continue with a disciplinary hearing.  At this point Mr Gregg sought an injunction to prevent the continuation of the disciplinary proceedings pending the outcome of the criminal investigation. 

 

High Court

The High Court granted Mr Gregg the injunction.  The Court found that continuing with the disciplinary process would amount to a breach of trust and confidence.  The Court also confirmed that based on Mr Gregg's contract, the Trust was not entitled to withhold pay during the period of suspension. 

 

Court of Appeal

The Court of Appeal overturned the High Court’s injunction and held that the Trust had not breached Mr Gregg’s trust and confidence. The Court held that intervention would only be appropriate if the employee can show that the continuation of the disciplinary proceedings will give rise to a real danger that there would be a miscarriage of justice in the criminal proceeding if the Court did not intervene.  In this case the Court of Appeal found that following a contractual disciplinary procedure would not present such a threat. 

The Court of Appeal agreed with the High Court that the Trust was not entitled to withhold Mr Gregg's pay during the period of his interim suspension.  If the Trust had intended to be able to suspend without pay during such periods, the contract would have said so.  As Mr Gregg was "ready, willing and able" to work and the suspension was involuntary and therefore arguably unavoidable, suspension should be with pay.

 

Comment

The case provides useful guidance for employers who are dealing with an employee facing a criminal investigation.  The Court was mindful of not “micro-managing” the Trust’s contractual disciplinary procedure, essentially saying that the Trust should be permitted to carry on with its own processes providing there was no real danger of injustice. 

The case highlights that employers (absent a contractual right to do so) cannot suspend without pay due to a temporary suspension of registration as a doctor.  Even if the contract provides for suspension without pay, employers should tread carefully as such a suspension is more likely to be classed as a breach of trust and confidence in these circumstances. 

Further Reading

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