Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Employees can investigate before end of police inquiries

In the case of North West Anglia NHS Foundation Trust v Gregg, the Court of Appeal confirmed that an employer need not postpone a disciplinary hearing while an employee awaits the outcome of a police investigation.

The case arose following police investigations into the deaths of two patients, after which a doctor was suspended on full pay. The doctor appealed to the High Court, and there were three issues in connection with that appeal.

Firstly, was the doctor entitled to pay while suspended? The answer was yes: if suspension without pay was intended, the doctor’s employment contract should have said so. Secondly, was North West Anglia NHS Foundation Trust entitled to a hearing over the termination of the doctor’s employment, on the basis that he no longer had his licence – even though internal investigations and disciplinary proceedings over his conduct were continuing? Again, yes: there were different basis for termination available to the Trust and pursuing one did not mean they couldn’t pursue another. Thirdly, was the Trust in breach of ‘implied term of trust and confidence’ for carrying out internal proceedings and not waiting for the police investigation to be completed? The Tribunal was found not to have applied the correct test and held that the Trust was not in breach.

Legal opinion

This case reinforces the importance of robust, thorough and clear disciplinary procedures, as the courts will seek not to ‘micro-manage’ an employer’s processes. In this case, the procedures the Trust followed were contractually binding terms on itself and the doctor.
Whilst our team advises that disciplinary processes are followed, every suspension should be handled with tailored advice, in order to minimise the risk of claims from a suspended employee.


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