Can an employer continue with a disciplinary procedure if the employee is being investigated by the police for the same incident, or must the employer press pause until the police investigation is complete?
This question crops up frequently and a recent Court of Appeal case considered it further.
North West Anglia NHS Foundation Trust v Gregg
Dr Gregg was appointed as a consultant in anaesthetics by the Trust on 29 September 2003. His contract in its current form was dated 15 January 2007.
The Trust became concerned in early 2016 that he had expedited the deaths of two patients through excessive administration of drugs. The Police also launched a criminal investigation and Dr Gregg was suspended on full pay.
The Interim Orders Tribunal, a body under the umbrella of the General Medical Council, decided to suspend Dr Gregg’s registration to practice and his licence. The Trust wrote to Dr Gregg stating that they were freezing his salary payments, arguing amongst other things that he was unable to fulfil his duties due to the suspension of his medical licence and his inability to practice.
On legal advice, Dr Gregg did not participate in the disciplinary process, so as to not prejudice himself in the ongoing criminal investigation. The Trust arranged a disciplinary hearing, a potential consequence of which would be Dr Gregg’s dismissal due to the suspension of his registration.
Dr Gregg initiated proceedings in the High Court against the Trust. An injunction was granted in his favour forcing the disciplinary proceedings to be stayed pending the outcome of the Police investigation. It was determined that the Trust were in breach of contract for failing to pay Dr Gregg’s salary whilst he was suspended. The High Court also found that the Trust were in breach of the implied term of trust and confidence by attempting to continue with their internal disciplinary process whilst the Police investigation was ongoing.
The Trust appealed to the Court of Appeal.
The Court of Appeal dismissed the Trust’s appeal relating to pay during suspension. It determined that, as Dr Gregg was involuntarily suspended by the Interim Orders Tribunal against his will, and was otherwise ‘ready, willing and able’ to work, he should be paid his salary in the normal way.
However, it allowed the Trust’s appeal in relation to continuing its internal disciplinary process despite the ongoing Police investigation. It held that there was no evidence that an internal disciplinary process would have any effect on the criminal investigation, or contribute to the possibility of a miscarriage of justice. Accordingly it held that the injunction had been granted incorrectly.
This case reinforces the point that in almost all circumstances where an employee is subject to a Police investigation, an employer can continue with its internal disciplinary process.
In the judgment, it is suggested that the standard of proof for an employer in an internal disciplinary process involving misconduct, should be that it reasonably has a genuine belief that the employee conducted themselves in the manner alleged. This distinction between the civil standard of balance of probabilities, and the higher criminal threshold of beyond reasonable doubt, was another reason that the Court determined that the internal investigation was to be treated differently than the ongoing Police investigation.
Employers do need to tread more carefully when investigating misconduct which could lead to criminal consequences.
If you have any queries in relation to disciplinary procedures or any other HR queries then please do not hesitate to contact the employment team on 01228 552600 or 01524 548494