Thanks to Ed McFarlane of Deminos HR for preparing this case summary.

Must an employer postpone a disciplinary hearing pending the outcome of a police investigation into an employee?

No, in almost all circumstances, held the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg.

The Claimant was a doctor facing disciplinary, regulatory and police enquiries after two patient deaths. He was suspended on full pay, a police investigation commenced and the Interim Orders Tribunal ‘IOT’ (a professional disciplinary body) temporarily suspended the doctor’s registration and withdrew his licence. Then the Trust sought to stop his pay. The doctor brought proceedings in the High Court.

The High Court granted an injunction preventing disciplinary proceedings pending the end of criminal proceedings, since continuing with the disciplinary process would breach the duty to maintain trust and confidence. The Court of Appeal overturned the injunction. Noting the ‘severe test’ for a breach of that implied term, the question was whether the conduct of the employer was calculated to destroy or seriously damage the relationship, and even if it was, whether there was reasonable and proper cause for that conduct. The Court warned against ‘micro-management’ by the court of an employer’s employment procedures. Furthermore, here the Trust was following its own contractually-binding disciplinary procedures; the doctor was himself contractually obliged to participate in the disciplinary process. Only a real danger of injustice would justify an injunction.

The High Court held that suspension had to be with pay during the IOT suspension, the Court of Appeal agreed. The starting point was the terms of the contract, interim suspension is now a feature of life for medical practitioners, if the contract intended suspension without pay during suspension, it would have said so (and didn’t). The doctor was ‘ready, willing and able’ to work, and the IOT suspension was involuntary, this would not permit unpaid suspension in all but exceptional circumstances, with general guidance at paras. 52-54.

The Court of Appeal also held that it would not have been wrong for the Trust, having started to investigate alleged misconduct, to ‘side-step’ the conduct disciplinary process by considering termination on the basis of the doctor losing his licence under the IOT suspension. The contract allowed for alternative grounds for termination, and starting one process didn’t prevent the Trust from relying on another.

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