Can an employer proceed with a disciplinary process when there is an ongoing police investigation?
Yes, according to the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg.
Dr Gregg was an anaesthetist. He was suspended in April 2016 following the deaths of two patients. He faced disciplinary, regulatory and police investigations. He was initially suspended on full pay; once the police investigation began, his licence to practice was temporarily revoked. The Trust ceased his pay. Dr Gregg sought an injunction to stop the Trust continuing with its disciplinary procedure, pending the outcome of the police investigation. He claimed that continuing with the disciplinary process would a breach the implied term of trust and confidence.
The Court of Appeal considered two questions: (1) whether by pursuing their own internal disciplinary process, rather than delaying it until the police investigation was completed, the Trust had breached trust and confidence; and (2) whether suspension without pay was warranted.
(1) Reasonable and proper cause for suspension
The Court of Appeal held it to be reasonable for the Trust not to wait for the conclusion of the police investigation before commencing the disciplinary process. Considering the 'severe test' for a breach of the implied term, the question was whether the employer’s conduct was calculated to destroy or seriously damage the relationship and, if it was, whether there was reasonable and proper cause for that conduct. The test should not be equated with a generalised obligation to act fairly.
(2) Suspension must be paid
The Court of Appeal held that unpaid suspension was not permitted. Dr Gregg’s contract did not have a provision to deduct wages; the revocation of his license was involuntary and he was ready, willing and able to work.
Implications for employers
This case confirms that an employer can proceed with its disciplinary processes even if a police investigation is ongoing. However, where any disciplinary investigations cannot be concluded properly because the employee is unable to put forward their case due to ongoing criminal proceedings, then employers should proceed with caution until after the criminal proceedings are concluded.