Employers have a careful path to tread when conducting an internal disciplinary, to ensure fairness to the employee under scrutiny, as well as any complainant while upholding the wider cultural principles of the organisation.
This is only magnified when a police or regulatory investigation is running in parallel. The #MeToo-era world of social media and classic issues of professional misconduct may mean that external probes add an extra dimension to be taken into account during the employer process.
Questions may arise as to whether the employee can be suspended without pay or whether the internal investigation can be progressed pending the outcome of any regulatory or criminal investigation.
A recent Court of Appeal case, North West Anglia NHS Foundation Trust v Gregg, provides welcome guidance to employers on how to deal with such circumstances.
The case involved an NHS consultant who was suspended (on full pay) from carrying out his duties by his employer, the North West Anglia NHS Foundation Trust, while they investigated concerns over the circumstances of two patient deaths. At the same time, the consultant was facing regulatory and police enquiries into the patients’ deaths.
The Interim Orders Tribunal (IOT) of the Medical Practitioners Tribunal Service (MPTS) imposed an interim suspension of his medical licence for 18 months, prompting the trust to suspend his pay.
The consultant then successfully obtained an injunction from the High Court preventing the trust from continuing its investigation until after the police had completed their investigation and a decision had been taken by the CPS as to whether or not to charge him. The High Court also found that the trust was in breach of contract for not paying the claimant’s salary while he was on interim suspension.
The trust appealed to the Court of Appeal, which found similarly that the trust was not entitled to withhold the claimant’s pay during his interim suspension. It held that in a situation where the contract was silent on the issue of pay deduction during suspension, the default position should be that a suspension should not attract the deduction of pay. Only exceptional circumstances, such as a complete or part admission of guilt, might justify such a deduction.
On the issue of whether the trust was entitled to progress its own internal disciplinary proceedings without waiting for the completion of the police investigation, the Court of Appeal held that the trust’s conduct was not calculated to destroy or seriously damage its relationship with the claimant and that there was a reasonable and proper cause for the trust wishing to progress its own internal disciplinary process in accordance with its contract with the claimant. It also found no evidence that the 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 made the point that the trust, and those who fund it or use its services, shouldn’t have to wait for a separate organisation to conclude its investigation, which could take months or years. It said there was no rational basis in this case for tying the contractual, internal investigation to the conclusion of the ongoing police investigation.
This case is important not only for other NHS trusts in setting out how they should conduct disciplinary processes, but also many of the issues apply more generally to other sectors – for example, employees in financial services whose employment is controlled by the FCA as well as their employer.
It demonstrates that:
- Where an employee is suspended, they should remain on full pay, unless the contract of employment expressly provides for deduction of pay in such circumstances or exceptional circumstances arise, such as the employee admitting guilt.
- An employer is entitled to progress its own internal disciplinary procedure and/or dismiss an employee without waiting for the conclusion of any criminal proceedings.
Clodagh Hogan is an associate in the employment team and Shannett Thompson a senior associate in the regulatory team at Kingsley Napley LLP