News & Insights

Pending investigation

We explore whether an employer should postpone a disciplinary hearing pending the conclusion of a police investigation into an employee?

A recent professional misconduct case demonstrates the difficulties faced by an employer when a criminal investigation into the behaviour of an employee is also the subject of an internal disciplinary hearing.  Employers are not normally keen to wait for the outcome of criminal proceedings before conducting their own disciplinary hearing, particularly if the employee is suspended on full pay.  This case raised the question of whether an employer should postpone a disciplinary hearing pending the outcome of a simultaneous police investigation.

The case concerned Dr Gregg, a doctor employed by the North West Anglia NHS Foundation Trust. During 2016-17 the Trust became concerned that Dr Gregg had hastened the death of two patients. An internal disciplinary hearing commenced, and Dr Gregg was suspended on full pay. The police were also advised.  Dr Gregg’s lawyer advised him not to participate in the disciplinary hearing as he could risk prejudicing himself in the criminal investigation. Despite this the Trust continued with the hearing and eventually stopped paying him. In response, the doctor obtained an interim injunction, from a Deputy High Court judge, to stop the Trust proceeding with the hearing until the police investigation was concluded.

The Trust appealed the decision, and the Court of Appeal found in their favour, concluding that the injunction had been wrongly granted. The Court of Appeal agreed with the Deputy High Court judge’s conclusion that the doctor should be paid during his suspension, however the key question centred on whether the Trust had breached the implied term of trust and confidence by not waiting for the outcome of the police investigation.

The Court of Appeal found no breach of the implied term of trust and confidence as there was no reason to find that the Trust’s conduct was calculated to destroy or seriously damage the relationship of trust and confidence by carrying out its contractually-binding disciplinary process.

This judgment illustrates that the interaction between criminal investigations and internal disciplinary process can be a delicate area. If this scenario arises, the question for the employer, is whether it had a genuine belief, on reasonable grounds, that the employee conducted themselves in the manner alleged. If this is the case, it may well be reasonable to continue with the internal disciplinary process, but make sure the position of both parties is considered thoroughly before any decisions are made.

Pending investigation