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 with which the employee was obliged to cooperate. In any event, the court held that there was reasonable and proper cause to deal with the allegations internally before the criminal matter was concluded, asking: "Why should the Trust, and those who fund it or use its services, wait for a separate organisation to conclude its separate enquiries, which might be months or years in the future?" The Court of Appeal stated that it could see no reason in this case why continuing with the disciplinary process would cause injustice in the criminal proceedings.

The court also made clear that Dr Gregg was entitled to full pay while on suspension. It held that an employee is still ready, willing and able to work when prohibited from working by the decision of a third party (such as the police or a regulator). The court commented that withholding pay in such a case could be tantamount to an assumption of guilt.

Wrigleys comment

The Court of Appeal was clear that employers will often have good reason to begin and carry through procedures in these circumstances. It pointed out that the burden of proof is less onerous for disciplinary decisions than for criminal proceedings. Disciplinary conclusions are made on the balance of probabilities; that is, the allegations are more likely than not to be true. Employers can dismiss fairly on the basis of a reasonable belief in culpability based on a reasonable investigation. In criminal proceedings, on the other hand, guilt must be proven beyond reasonable doubt.

There will still be some cases in which it is not reasonable to proceed with the disciplinary process. For example, where this may cause a real risk of injustice in the criminal proceedings. Employers should liaise with the police to ascertain whether such risks could arise.

Please see my earlier article (Oct 2017) on dealing with employees who are being investigated by the police, with a particular focus on school employees, for further information on this topic.