Can disciplinary and police investigations run simultaneously?
Your employee is accused of committing a work-related offence that necessitates police involvement.
E2E’s strategic partner, Ellis Whittam, discuss whether you as an employer have to wait until the police investigation has concluded before conducting your own disciplinary process?
In a word, no.
That’s according to the outcome of a recent case, in which the Court of Appeal ruled that waiting for police inquiries to end before carrying out your own internal procedures was unnecessary in almost all cases.
North West Anglia NHS Foundation Trust v Gregg
In this case, Dr Gregg, a consultant anaesthetist, faced disciplinary, regulatory and police enquiries following the death of two patients under his care.
Following the accusations, he was suspended on full pay and a police investigation commenced. Meanwhile, the Interim Orders Tribunal (IOT) of the Medical Practitioner’s Tribunal Service temporarily suspended his registration and withdrew his license.
On this basis of this order, the Trust then looked to stop his pay. At this point, Dr Gregg, who strenuously denied the allegations against him, sought a High Court injunction to prevent his employer from:
· Proceeding with its disciplinary processes until the Crown Prosecution Service (CPS) had decided whether or not to press criminal charges in relation to the deaths; and
· Ceasing to pay his salary.
The High Court granted this injunction, stating that continuing with the disciplinary process would breach the employer’s duty to maintain trust and confidence.
However, in response, the Trust made a counterclaim in the Court of Appeal. It argued that as Dr Gregg no longer held a license to practice, it was entitled, under the terms and conditions of his Contract of Employment, to hold a hearing to decide whether or not to terminate his employment.
The Court of Appeal agreed and subsequently overturned the injunction.
It noted that the ‘severe test’ for a breach of trust and confidence was whether the employer’s conduct was deemed to destroy or seriously damage the employer/employee relationship. Moreover, even if it was, the question was whether the employer had reasonable and proper cause for its actions.
The Court of Appeal also held that it would have been permissible for the Trust, having started to investigate alleged misconduct, to circumvent the conduct disciplinary process and move straight to considering termination on the basis of the doctor losing his licence under the IOT suspension. This was because Dr Gregg’s Contract of Employment did provide for alternative grounds for termination – and starting one process didn't prevent the Trust from relying on another.
Importantly, the Court of Appeal warned against micro-managing an employer’s employment procedures and that they should be free to follow internal protocol, stating that only a real danger of injustice would warrant an injunction. As always, it’s important that you follow the advice of an expert in Employment Lawbefore making a decision.
Contract is key
Ultimately, the Court was not concerned with the underlying allegations against Dr Gregg but with the content of his Contract of Employment and surrounding contractual documents. After all, the Trust was following its own contractually-binding disciplinary procedures, and Dr Gregg was contractually obliged to participate in the disciplinary process. As such, they could not justify an injunction against the Trust.
However, the Court of Appeal did agree with the High Court that Dr Gregg’s suspension had to be with pay. Again, taking his Contract of Employment as the basis for its decisions, it found that there was nothing within his contract to state that his suspension should be unpaid – especially as it was involuntary, and Dr Gregg was “ready, willing and able” to work.
What does this mean for employers?
James Tamm, Director of Legal Services at Ellis Whittam, explains that the situation of misconduct and overlapping criminal investigation does crop up on a fairly regular basis, stating that: “Whilst the facts of this case are quite unusual, it is reasonably common for internal disciplinary procedures to run parallel to police investigations, especially in cases involving theft or fraud.”
Commenting on the significance of this case, James says: “The case is a useful reminder that an employer does not have to wait for the police or CPS to complete their investigations before taking action against an employee. Indeed, if that were required, it would often lead to employees being suspended for many months at a time.
He explains: “The police are trying to prove guilt of a crime beyond a reasonable doubt. An employer is working to a totally different standard of proof: whether, on the balance of probabilities, the employee has committed an act of misconduct. To arrive at that conclusion, the employer is simply required to carry out a reasonable investigation in order to maintain a genuine and reasonable belief that the employee is “guilty”. When viewed in this way, it is plain to see that there is very little crossover between the criminal and internal investigations.”
If you’re facing a similar issue or just want to ensure that your contractual documentation is watertight, Ellis Whittam’s qualified Employment Law Adviserscan provide expert reassurance. Call 0345 226 8393.