An employee was automatically unfairly dismissed because of his union activities even though...
Disciplinary hearings and police investigations
North West Anglia NHS Foundation Trust v Gregg
An employer does not usually need to wait for the conclusion of criminal proceedings before starting or continuing with internal disciplinary proceedings.
Dr Gregg was facing serious allegations following the deaths of two patients – ones he strenuously denied. He was suspended on full pay; a police investigation began, his registration was temporarily suspended and his licence to practise withdrawn. The trust then sought to stop his pay. It also decided to proceed with its disciplinary proceedings while the CPS were still considering whether to press charges against Dr Gregg. He brought High Court proceedings for an injunction to prevent the trust from continuing with the disciplinary proceedings and from not paying him.
The High Court granted an injunction restraining the trust from ceasing to pay Dr Gregg’s salary and from proceeding with its disciplinary processes until after the police had completed their investigation and a decision had been taken by the CPS whether or not to charge Dr Gregg (on the basis that the trust was in breach of the implied term of mutual trust and confidence). The trust appealed.
Court of Appeal decision
The trust’s appeal was partially successful.
Was the trust in breach of contract in withholding Dr Gregg’s pay during the interim suspension?
Yes, it was said the Court of Appeal. The suspension did not terminate Dr Gregg’s contract – it was simply to preserve the position until more was known about the allegations, and to allay any public concerns before such allegations could be resolved. It was akin to an exclusion and was quite different from a suspension imposed by way of sanction.
The starting point was Dr Gregg’s contract – was the decision to withhold pay in accordance with the express or implied terms of his contract or of custom and practice? No said the Court of Appeal. If the contract had intended suspension to be without pay during suspension, it would have said so. It didn’t. Dr Gregg was ‘ready, willing and able’ to work.
The court noted that ‘a considerable degree of caution is necessary before concluding that someone like [Dr Gregg], who was and remains the subject of an interim suspension imposed in the public interest, is not “ready, willing and able” to work, or is to be characterised as avoidably or voluntarily unable to work’.
Was the trust in breach of contract by pursuing its own internal disciplinary process in parallel with an investigation by the police?
No, it wasn’t said the Court of Appeal.
An employer considering dismissing an employee does not usually need to wait for the conclusion of any criminal proceedings before doing so. And - while it is open to an employer to do so – an employer does not usually need to wait for the conclusion of criminal proceedings before starting or continuing with internal disciplinary proceedings.
The High Court had applied the wrong test when considering whether to grant an injunction (it had equated the duty of trust and confidence with a duty to act fairly). It should have asked whether the conduct of the trust was calculated to destroy or seriously damage the relationship, and even if it was, whether there was reasonable and proper cause for that conduct. Dr Gregg was refused an injunction because the trust’s progression of the disciplinary procedures was not calculated to seriously damage the relationship and, in any event, there was a reasonable and proper cause (the trust was simply following its own contractually binding disciplinary procedures). The High Court’s decision to prevent the on-going disciplinary process (via an injunction) and to await the outcome of the police investigation amounted to micro-management by the court of the trust's employment procedures.
Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/387.html
The interaction of criminal investigations and disciplinary hearings can be a tricky area. The burden of proof is different so whilst criminal proceedings might not proceed because the police cannot establish ‘beyond reasonable doubt’, an employer might still dismiss on a ‘balance of probabilities’. Complications can arise if the police do not want you to investigate for fear of prejudicing their own enquiries and ‘rehearsing’ witnesses.
When facing such a scenario, consider:
- Whether the conduct justifies disciplinary action – a police investigation, criminal charge or conviction related to something which was not in the course of employment is not usually a reason for disciplinary action, unless it brings the organisation into disrepute or there are other extenuating circumstances.
- Assuming it does impact on the employee’s suitability to do their job and their relationship with the employer, work colleague or customers, consider the timing of any disciplinary procedure
You’ll need to weigh up the potential prejudice to the employee of proceeding with the need to conclude your disciplinary process. There are no hard and fast rules: it may be reasonable to proceed with the disciplinary action, but sometimes it is reasonable to postpone it. While you do have wide discretion when deciding whether disciplinary action should proceed concurrently with a police investigation (subject to any obligations imposed by the police), ensure you’ve fully considered the position of both parties and that you can demonstrate that you’ve done so.