When Disciplinary And Criminal Proceedings Interact

Should an employer wait for criminal proceedings to conclude before undertaking an internal disciplinary process?

Employers can find themselves in a difficult situation when an employee is investigated by the police or a regulator. There are often good reasons why an employer will want to carry out its own disciplinary process rather than waiting for an outcome to external proceedings. Individuals can remain on police bail or a regulatory suspension for many months or even years, meaning employers can be faced with a long period of suspension on full pay.

A recent case has made clear that employers will not usually be expected to postpone disciplinary proceedings in these circumstances.

Case details: North West Anglia NHS Foundation Trust v Gregg

Dr Gregg was employed by the NHS Trust as a consultant anaesthetist. The death of two patients in his care were investigated by the trust. To protect patient safety, Dr Gregg was suspended (on full pay) by the trust which then referred the matter to the GMC. The police arrested Dr Gregg on suspicion of unlawful killing and released him on bail. The police had no objection to the employer continuing with its internal procedures. The GMC began an investigation and an Interim Orders Tribunal suspended Dr Gregg's GMC registration for 18 months. Dr Gregg refused to participate in the employer's investigation while criminal proceedings were ongoing.

The trust lifted its internal suspension on the basis that it was no longer necessary given the GMC suspension. The trust then decided to stop paying Dr Gregg, stating that he was in breach of contract as he was unable to perform his role due to the suspension of his GMC registration and police bail conditions. It reversed this decision the following month.

Dr Gregg sought an interim injunction in the High Court to prohibit the trust from continuing with its disciplinary process while criminal proceedings were underway. The High Court granted the injunction finding that continuing the disciplinary process would be in breach of the implied term that the employer will not without reasonable and proper cause act in a way likely to destroy or damage the relationship of mutual trust and confidence between employer and employee.

On appeal, the Court of Appeal overturned the injunction. It held that continuing with internal processes in the circumstances was not behaviour likely to destroy trust and confidence; the employer was simply following a contractual process...