10 April, 2019
In North West Anglia NHS Foundation Trust v Gregg the Court of Appeal held that an employer was not obliged to postpone a disciplinary hearing pending the outcome of a police investigation into an employee.
Dr Gregg was employed as a consultant anaesthetist by the Trust since September 2003. In June 2013, Patient B, who was in the care of Dr Gregg, died. No concerns were raised at the time about the circumstances of Patient B's death. In January 2016, Patient A, who was also in the care of Dr Gregg, died in the Trust's intensive care unit. On this occasion, concerns were expressed as to the circumstances of the patient's death and in February 2016 an investigation was initiated. The investigation recommended that disciplinary proceedings be taken against Dr Gregg and five days later the Trust excluded Dr Gregg from duty on full pay and the case was referred to the GMC. In May 2016, the police informed the GMC that they were investigating Dr Gregg for the unlawful killing of Patient A. That investigation continued into 2017.
Alongside the Patient A investigation, in April 2017, an investigation into Patient B's death began and in May the Medical Practitioners Tribunal Service decided to impose an order of suspension on Dr Gregg for a period of 18 months. In August 2017, the Trust lifted Dr Gregg's exclusion as the IOT's interim suspension made it unnecessary, and informed Dr Gregg that his pay would be suspended as from 1 September 2017.
Dr Gregg obtained an injunction from the High Court preventing the Trust from continuing its investigation into the death of Patient B 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 Patients A and/or B. This was on the basis that a breach of the implied term of trust and confidence would otherwise occur
In April 2018 they revived Dr Gregg's registration although he was still prohibited from having clinical contact with patients and the Trust reinstated their exclusion of him. In June 2018, the police decided that no further action would be taken in respect of the death of Patient B, so that the matter would not be referred to the CPS and the injunction granted by the judge expired 14 days later. Following the expiry, the Trust informed Dr Gregg that they were going to resume their internal disciplinary process with a disciplinary hearing diarised in relation to Patient A.
The Court of Appeal approved an appeal by the Trust, overturning the decision to impose an injunction by the High Court. The Court of Appeal warned against 'micro-management' by the court of an employer's employment procedures. The Trust should be permitted to follow its own contractually-binding disciplinary procedures and only a real danger of injustice would justify an injunction.
The Court of Appeal agreed with the High Court that suspension had to be with pay during the IOT suspension. The starting point was the terms of the contract. If the contract intended to allow for suspension without pay it would have said so. Dr Gregg's contract did not provide for suspension without pay. He was 'ready, willing and able' to work, and the IOT suspension was involuntary. This would not permit unpaid suspension in all but exceptional circumstances.
The findings provide comfort to employers wishing to carry out disciplinary investigations during ongoing criminal investigations. But also reinforces the importance of a comprehensive contract of employment covering procedures that will be implemented during investigations, particularly surrounding suspensions and pay.
If you have any queries regarding contractual terms of employment, investigations, or the effects of criminal proceedings, or would like advice in relation to any aspect of employment law please contact our Employment and HR Team by telephone on 0333 207 1135. Alternatively, send your enquiry to us through our online contact form.