Injunction preventing employer pursuing disciplinary proceedings in parallel with a police investigation overturned

The Court of Appeal has ruled that an employer was entitled to conduct its own disciplinary process whilst a related police investigation was ongoing.   

Facts

In North West Anglia NHS Foundation Trust v Gregg, the Trust had concerns that Dr Gregg had hastened the deaths of two patients.  It opened disciplinary proceedings, notified the police and suspended him on full pay.  The General Medial Council suspended his registration and the Trust stopped his salary as he was not "ready, willing and able to work".  

Dr Gregg’s lawyer advised him not to take part in the disciplinary proceedings as he risked prejudicing himself in the criminal investigation.  The Trust refused to adjourn the hearing.  

Dr Gregg obtained an injunction preventing the Trust from continuing with its investigation until the police investigation was complete. The High Court considered that the Trust’s insistence on pursuing its disciplinary investigation was a breach of the implied term of trust and confidence.   

The Trust appealed to the Court of Appeal. 

Decision

The Court of Appeal upheld the appeal and overturned the injunction. 

It reviewed previous case law on the interplay between disciplinary proceedings and criminal law.  This indicates that an employer does not usually need to wait for the conclusion of criminal proceedings before commencing or continuing with disciplinary proceedings or dismissing an employee.  A court will usually only intervene if the employee can show that the continuation of the disciplinary proceedings gives rise to a real danger of a miscarriage of justice in the criminal proceedings. 

The Court of Appeal concluded that the Trust had not acted in breach of the implied term of trust and confidence. Its conduct was not calculated to destroy or seriously damage the relationship of trust and confidence.  In addition, it had reasonable and proper cause for wanting to operate the disciplinary process in accordance with its contract with Dr Gregg.  

There was no evidence that the disciplinary proceedings would have any effect on the criminal investigation, let alone give rise to a serious miscarriage of justice.  The fact that Mr Gregg’s lawyers had advised him of a risk of prejudice was not sufficient.  

However, the Court of Appeal ruled that the Trust had not been entitled to stop paying him whilst he was suspended.  Where an employee is ready and willing to work but cannot do so because of a constraint imposed by a third party (in this case the GMC’s suspension of his registration), suspension should be on full pay unless the contract provides otherwise or there are exceptional circumstances, such as a complete or partial admission of guilt.

Implications     

Employers are entitled to proceed with their internal disciplinary process even though there is a criminal investigation ongoing.  However, if there is a real danger of a miscarriage of justice in the criminal proceedings they will have to put their own investigations on hold.  Employees will be entitled to be paid whilst suspended unless the employment contract states otherwise.