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By Spencers Solicitors

  Evie Mosley    
  May 28, 2019

Can employers pursue internal disciplinary proceedings whilst a criminal and/or regulatory investigation is ongoing?

The recent case of North West Anglia NHS Foundation Trust v Gregg confirms that employers will not generally be expected to delay their own disciplinary process whilst criminal investigations are ongoing.

The case concluded that the Trust withheld a doctor’s pay whilst he was suspended, in circumstances which they were not entitled to do so, but that there was no evidence to suggest that pursuing their own internal disciplinary processes would cause injustice in the criminal proceedings and the police had no objections to them doing so.

Facts of the Case

The NHS Trust became aware of issues arising from Dr Gregg’s conduct following the death of two patients in his care. They suspended him on full pay and referred the issues to the police and the General Medical Council. Dr Gregg’s licence to practice was withdrawn for 18 months and the Trust stopped his pay. Dr Gregg sought an injunction to prevent his employer from pursuing their internal disciplinary proceedings and withholding his pay, until the criminal investigation had been concluded.

Decision

Overturning the High Court’s decision to grant the injunction, the Court of Appeal held that the Trust was not in breach of the implied term of trust and confidence in proceeding with their own procedures. The decision was made on the grounds that there was no evidence to suggest that the continuation of the disciplinary proceedings will give rise to a real danger that there would be a miscarriage of justice. The Trust had, however, unlawfully withheld Mr Gregg’s pay.

Analysis

Criminal investigations can take several months or years to conclude and an employee is entitled to full pay whilst on suspension, unless their contract of employment stipulates otherwise. Therefore, it may be in an employer’s financial interest to carry out its own disciplinary process sooner rather than later.

The ACAS Code on Disciplinary and Grievance Procedures states that employers should hold any disciplinary hearing without unreasonable delay, which also suggests that an employer should not wait for criminal investigations to be concluded.

The burden of proof in disciplinary proceedings is less onerous than for criminal proceedings. Disciplinary proceedings can be concluded on the balance of probabilities as opposed to criminal proceedings whereby guilt must be proven beyond a reasonable doubt.

There will still be some circumstances in which it would not be appropriate to undertake internal disciplinary processes whilst the outcome of a criminal investigation is pending.


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