This was the question before the Court of Appeal in the case of North West Anglia NHS Foundation Trust v Gregg.
Where an employee’s alleged misconduct is also the subject of a police investigation, the question arises as to whether the employer should put on hold the disciplinary action pending the outcome of the investigation.
The Acas Code of Practice on Disciplinary and Grievance Procedures requires that the employer should hold a disciplinary hearing without unreasonable delay. The Acas guide also says that “where the matter requires prompt attention the employer need not await the outcome of the prosecution before taking fair and reasonable action”.
In most cases, an employer will not be expected to wait for the criminal proceedings to conclude before taking disciplinary action.
There will, however, be some situations where it may be appropriate to adjourn a disciplinary investigation while the police investigate and prosecute the employee for the same offence. In some rare cases, (such as the case reported below) an employee might try to obtain an injunction to get an adjournment of disciplinary proceedings, if they can establish that the internal proceedings may prejudice the outcome of the criminal prosecution.
Dr Gregg was engaged as a consultant in anesthetics by the North West Anglia NHS Foundation Trust (the ‘Trust’). Following the death of a patient in his care, an investigation was carried out and disciplinary proceedings were recommended. Dr Gregg was suspended on full pay and his case was referred to the General Medical Council. Shortly afterwards, the police told the GMC that Dr Gregg was being investigated in relation to the death of a patient.
While the police investigation was ongoing, Dr Gregg’s registration was suspended and his licence to practice was withdrawn. The Trust sought to stop his pay and continued to proceed with its own internal disciplinary proceedings, even though the police investigation was ongoing.
Dr Gregg brought proceedings in the High Court seeking an injunction to prevent the ongoing investigations by the Trust until the end of the criminal proceedings as those proceedings could otherwise be prejudiced. The High Court granted the injunction on the basis that continuing with the disciplinary process would breach the duty to maintain trust and confidence. The Trust appealed to the Court of Appeal.
The Court of Appeal overturned the injunction. The Court held that a court should usually only intervene and grant an injunction 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. There was no such danger judged to be present in this case.
The Court held that the High Court Judge had wrongly equated the implied term of trust and confidence with a general obligation to act fairly and had failed to apply the “severe” test required to demonstrate breach of the implied term. Applying the test, the Court of Appeal held that there was no basis on which to find that the Trust’s conduct was calculated to destroy or seriously damage the relationship of trust and confidence by pursuing its own internal (and contractually-binding) disciplinary process.
Points to Note
The Court commented that an employer does not usually need to wait for the conclusion of criminal proceedings before continuing internal disciplinary proceedings. Nonetheless, as this case demonstrates, it is far from a straightforward decision for an employer to make – particularly where an employee’s career may be at stake.
The fact that an employee is subject to a police investigation or has been charged or convicted with an offence does not necessarily justify disciplinary action in itself where the alleged conduct has occurred outside the course of their employment and it has no bearing on the employee’s job, relationship with colleagues or the reputation of the business.
If it does have such a bearing, you should still carry out a reasonable investigation (subject to any restrictions placed on this by the Police), warn the employee in advance if dismissal is contemplated and hold a disciplinary hearing to give the employee the opportunity to state their case.
The test of whether or not an employee has been fairly dismissed is still the same whether or not the Police are involved. You must have reasonable grounds for believing the employee to be guilty, based on a reasonable investigation, and your decision to dismiss must be one which falls within the range of reasonable responses available to an employer in such circumstances.
When deciding whether or not to wait for court proceedings to conclude before taking disciplinary action, the following factors will be relevant:
- Whether the criminal charges, if proven, are likely to end an employee’s chosen career.
- How practical it is to wait for conclusion of a criminal case (particularly if the employee is suspended on full pay) before making a decision;
- The size and nature of the business and the number of employees.
- Any provision in the terms of the employee’s employment, including the employer’s disciplinary procedure.
Action to take
- Ensure that all staff who undertake disciplinary investigations are trained and aware on how to handle appropriately if criminal charges are involved.
- If a similar situation arises in your business, then we strongly recommend that you seek advice.