Disciplinary procedures and police investigation
In the case of North West Anglia NHS Foundation Trust v Gregg, the Courts looked at when an employer should halt its own internal procedures if the police are also investigating the same matter.
Dr Gregg was employed by the North West Anglia NHS Foundation Trust. After the deaths of two patients, Dr Gregg faced internal disciplinary procedures and was excluded from work on full pay. He was then referred to the General Medical Council and a police enquiry began soon after.
Later, the Interim Orders Tribunal of the Medical Practitioners Tribunal Service (a professional disciplinary body) met to consider whether it was necessary for the protection of members of the public to suspend Dr Gregg’s registration to practice as a doctor. The IOT decided to temporarily suspend Dr Gregg’s registration and withdrew his licence. The Trust then sought to stop his pay and decided to proceed with its internal disciplinary proceedings, while the CPS were considering whether to press criminal charges against Dr Gregg.
The Trust began its investigation and started to interview staff members as part of that investigation. Dr Gregg was also invited to an interview however he refused to attend and issued a claim in the High Court seeking an injunction to restrain the Trust from continuing with it’s investigation.
The High Court granted an injunction preventing the Trust from stopping Dr Gregg’s pay. The Court also restricted the Trust from continuing its internal investigation into the death of the patients until after the police had completed their investigation, and a decision had been taken by the CPS as to whether or not to charge Dr Gregg in connection with the deaths of the patients.
The Trust appealed to the Court of the Appeal and the Court of Appeal held the following in relation to 1. The suspension of pay; and 2. The Trust’s internal investigation into the matter:
The Trust was in breach of contract in withholding Dr Gregg’s pay during the interim suspension imposed by the IOT. The suspension by the IOT did not terminate Dr Gregg’s contract with the Trust. The suspension was simply to preserve the position until further information was obtained about the allegations.
In addition, the Court of Appeal found that the decision to withhold pay was not in accordance with the express or implied terms of Dr Gregg’s contract or in line with custom and practice. The restriction on Dr Gregg’s ability to practice as a doctor was imposed by a third party (ie the IOT) against his will. Dr Gregg himself remained ready, willing and able to work and so was entitled to be paid on that basis.
Continuation of the Trust’s internal investigation
The Court of Appeal held that the Trust was entitled to continue with its own internal disciplinary proceedings without waiting for the police investigation to conclude. It found that at no point were the Trust’s actions calculated to “destroy or seriously damage” its relationship with Dr Gregg and, in this regard, the Trust was not in breach of the implied term of trust and confidence.
An employer considering dismissing an employee does not usually need to wait for the conclusion of any criminal proceedings before doing so. In the present case nothing in the employee’s contract of employment suggested this was required and indeed waiting could have prolonged the whole process by months or even years. Where employees are required to be registered by a professional body in order to work, but that registration is suspended, an employer will need clear terms in the employment contract to be able to withhold pay during any period of suspension.