Must an employer put a disciplinary investigation on hold pending the outcome of a police investigation into an employee?

Almost always, no.

The facts

Mr Gregg was a doctor with North West Anglia NHS Foundation Trust and was facing disciplinary, regulatory and police enquiries after the death of two patients.

He was suspended on full pay whilst a police investigation was carried out. His  professional disciplinary body temporarily suspended Mr Gregg’s  registration and withdrew his licence. When the NHS Trust sought to stop his pay, he brought proceedings in the High Court.

The High Court granted an injunction which prevented disciplinary proceedings until the criminal investigation and proceedings had been concluded since continuing with the disciplinary process would breach the duty to maintain trust and confidence.

The appeal

The Court of Appeal overturned the injunction. The question was whether the conduct of the Trust was calculated to destroy or seriously damage the working relationship, and even if it was, whether there was reasonable and proper cause for their decision.

The Trust was following its own contractual disciplinary procedures which the doctor was himself contractually obliged to participate in. Only a real danger of injustice would justify an injunction.

The Court of Appeal agreed with the High Court that the suspension had to be with pay during the. If the employer wanted to maintain the power to suspend without pay, it should have said so in the contract. It didn’t.

Dr Gregg was ‘ready, willing and able’ to work, and the suspension was involuntary, this would not permit unpaid suspension in all but exceptional circumstances.The Court of Appeal also held that it would not have been wrong for the Trust, having started to investigate alleged misconduct, to ‘side-step’ the conduct disciplinary process by considering termination on the basis of the doctor losing his licence. The contract allowed for alternative grounds for termination.

North West Anglia NHS Foundation Trust v Gregg

Read more about disciplinary investigations

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