Following the Court of Appeal decision in North West Anglia NHS Foundation Trust v Gregg  EWCA Civ 387, is it now “beyond a reasonable doubt” that employers can continue internal processes before the conclusion of criminal proceedings?
Put simply: not quite. However, this is a very helpful case for employers, considering whether there will be a breach of the implied term of trust and confidence by pressing ahead with internal disciplinary proceedings where there is a parallel police investigation into the same issues under way.
Here, the Court of Appeal overturned an interim injunction which had been granted by the High Court to stop the Trust from proceeding with its internal disciplinary process. The Court of Appeal found that proceeding would not be a breach of the implied term of trust and confidence and that an employer considering dismissing an employee does not usually need to wait for the conclusion of any criminal proceedings. The Court of Appeal stated that, unless the employee can show that there will be a real danger of a miscarriage of justice in the criminal proceedings, a court will not usually intervene.
During 2016 and 2017 the Trust became concerned by Dr Gregg’s patient care and that his actions had accelerated patient deaths. The Trust suspended Dr Gregg on full pay, while they initiated disciplinary proceedings under its applicable contractual disciplinary process (MHPS), and reported his actions to the police.
The effect of his suspension meant that when the General Medical Council reviewed the case it suspended Dr Gregg’s registration to practise. As a result of this, the Trust stopped his salary on the basis he could not fulfil his contractual duty to be ready, willing and able to perform the work that he was employed to do. The Trust also relied on MHPS, which provides a discretion to suspend a doctor’s salary when he or she is unavailable for work. Separately, the CPS decided to investigate one of the patient deaths.
The Trust invited Dr Gregg to attend a disciplinary hearing. Dr Gregg received legal advice not to participate in a disciplinary hearing as he would risk prejudicing himself in the criminal investigation. Nonetheless, the Trust decided to proceed with the disciplinary hearing. Dr Gregg sought and obtained an interim injunction to prevent the Trust from completing its own disciplinary process while the police investigation was outstanding.
The High Court held that the Trust was or would have been in breach of contract:
- By suspending Dr Gregg on nil pay.
- By continuing with its disciplinary processes, rather than delaying it until the police investigation was complete.
The Trust appealed and the Court of Appeal considered whether this decision was correct.
The Court of Appeal found that the Trust had no express right to suspend Dr Gregg without pay and its appeal was dismissed. This was because Dr Gregg was ready, willing and able to work but it was the decision of the GMC which had affected his ability to work and not the doctor himself. Further, there was no express right in Dr Gregg’s contract to suspend without pay nor were there any exceptional circumstances which might have justified the Trust’s actions.
The Court of Appeal found that there was “reasonable and proper cause” for the Trust to want to operate its disciplinary process and that its actions were not calculated to destroy or seriously damage the relationship of trust and confidence, not least in circumstances where the Trust was following its contractual disciplinary process. It followed that the appeal was successful and the injunction had been wrongly granted.
What does this mean for employers?
Although this decision was about a contractual internal process for doctors, it does have wider implications. It makes clear that it will be a breach of contract to suspend without pay unless there are exceptional circumstances, such as an employee admitting his or her own guilt or if there is a clear express contractual right to do so. This virtually closes the door on stopping pay where a regulator makes an interim decision to suspend a professional’s right to practise without a finding of fault on his or her part.
Employers should be buoyed by the decision that the internal process could continue pending a decision on whether or not to charge Dr Gregg with a crime. Employers will be familiar with arguments made by individuals and their lawyers about prejudice to the criminal investigation if they participate in internal processes to justify a delay. However, in this case there was no evidence that an internal disciplinary process would have any effect on the criminal investigation, let alone give rise to a real danger of a miscarriage of justice. The Court of Appeal made clear that there is a high bar for employees to meet if they are to establish that proceeding with an internal process would breach trust and confidence by reference to other parallel processes. It is not enough just for an employee to say that they have been advised by their lawyer that they should not be involved in an internal process.
Further, employers should not feel like they are being “micro managed” and subject to potentially long delays in their internal processes when there are parallel criminal investigations (which can take several years from the initial stages to a charge by the CPS and then to trial). This decision provides employers with comfort that, provided they have taken care to ensure that any arguments about prejudice are properly considered and addressed rather than just being dismissed out of hand, they can usually proceed with following their own disciplinary procedures, before the conclusion of any criminal proceedings. Also, the more advanced the criminal process, the harder it will be for employees to show prejudice.
Geetika Bansal is a senior associate and Nick Chronias is a partner in the London Employment & Pensions team at DAC Beachcroft LLP.