blog

Can disciplinary and police investigations run simultaneously?

Your employee is accused of committing a work-related offence that necessitates police involvement. Do you as an employer have to wait until the police investigation has concluded before conducting your own disciplinary process?

In a word, no.

That’s according to the outcome of a recent case, in which the Court of Appeal ruled that waiting for police inquiries to end before carrying out your own internal procedures was unnecessary in almost all cases

North West Anglia NHS Foundation Trust v Gregg

In this case, Dr Gregg, a consultant anaesthetist, faced disciplinary, regulatory and police enquiries following the death of two patients under his care.

Following the accusations, he was suspended on full pay and a police investigation commenced. Meanwhile, the Interim Orders Tribunal (IOT) of the Medical Practitioner’s Tribunal Service temporarily suspended his registration and withdrew his license.

Do you need support?

Speak to us for an honest, no obligation chat on:

0345 226 8393    Lines are open 9am – 5pm

Pay

On this basis of this order, the Trust then looked to stop his pay. At this point, Dr Gregg, who strenuously denied the allegations against him, sought a High Court injunction to prevent his employer from:

  • Proceeding with its disciplinary processes until the Crown Prosecution Service (CPS) had decided whether or not to press criminal charges in relation to the deaths; and
  • Ceasing to pay his salary.

The High Court granted this injunction, stating that continuing with the disciplinary process would breach the employer’s duty to maintain trust and confidence.

Ruling overturned

However, in response, the Trust made a counterclaim in the Court of Appeal. It argued that as Dr Gregg no longer held a license to practice, it was entitled, under the terms and conditions of his contract of employment, to hold a hearing to decide whether or not to terminate his employment.

The Court of Appeal agreed and subsequently overturned the injunction.

It noted that the ‘severe test’ for a breach of trust and confidence was whether the employer’s conduct was deemed to destroy or seriously damage the employer/employee relationship. Moreover, even if it was, the question was whether the employer had reasonable and proper cause for its actions.

The Court of Appeal also held that it would have been permissible for the Trust, having started to investigate alleged misconduct, to circumvent the conduct disciplinary process and move straight to considering termination on the basis of the doctor losing his licence under the IOT suspension. This was because Dr Gregg’s Contract of Employment did provide for alternative grounds for termination – and starting one process didn’t prevent the Trust from relying on another.

Importantly, the Court of Appeal warned against micro-managing an employer’s employment procedures and that they should be free to follow internal protocol, stating that only a real danger of injustice would warrant an injunction.

Contract is key

Ultimately, the Court was not concerned with the underlying allegations against Dr Gregg but with the content of his contract of employment and surrounding contractual documents. After all, the Trust was following its own contractually-binding disciplinary procedures, and Dr Gregg was contractually obliged to participate in the disciplinary process. As such, they could not justify an injunction against the Trust.

However, the Court of Appeal did agree with the High Court that Dr Gregg’s suspension had to be with pay. Again, taking his Contract of Employment as the basis for its decisions, it found that there was nothing within his contract to state that his suspension should be unpaid – especially as it was involuntary, and Dr Gregg was “ready, willing and able” to work.

Lessons for employers

The situation of misconduct and overlapping criminal investigation crops up on a fairly regular basis. Whilst the facts of this case are quite unusual, it is reasonably common for internal disciplinary procedures to run parallel to police investigations, especially in cases involving theft or fraud.

This case is a useful reminder that an employer does not have to wait for the police or CPS to complete their investigations before taking action against an employee. Indeed, if that were required, it would often lead to employees being suspended for many months at a time.

The police are trying to prove guilt of a crime beyond a reasonable doubt. An employer is working to a totally different standard of proof: whether, on the balance of probabilities, the employee has committed an act of misconduct. To arrive at that conclusion, the employer is simply required to carry out a reasonable investigation in order to maintain a genuine and reasonable belief that the employee is “guilty”. When viewed in this way, it is plain to see that there is very little crossover between the criminal and internal investigations.

Related Content

Need support?

For practical advice on investigating misconduct allegations in your workplace, including help ensuring your contractual documentation is watertight, contact WorkNest today. Our Employment Law and HR specialists can guide you through the investigation process and, if you prefer, can even conduct them on your behalf to take the pressure off.

To discuss your specific situation and explore possible support options, call our team on 0345 226 8393 or request your free consultation using the button below.

Find what you were looking for?

Our FREE resources library contains over 200 searchable blogs, guides and templates focused around Employment Law and Health & Safety issues that employers face on a day-to-day basis.

Get your FREE download

We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

Call us on 0345 226 8393.

Get your FREE download

We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

Call us on 0345 226 8393.

Get your FREE consultation

Submit your details and one of our team will be in touch.

Activate your free trial

The rota module has been built on our brand new technology platform, so you’ll need to create a new account that you can then integrate with your existing Youmanage/PeopleNest account.

Follow these steps to activate your trial

  1. Log in to your existing Youmanage/PeopleNest account
  2. Navigate to admin mode
  3. In the menu, navigate to Integrations > Marketplace
  4. On the ‘PeopleNest – Rota Module’ line, click ‘configure’
  5. Create your new account – because we’ve built the new Rota Module on our brand new PeopleNest platform, you’ll need to create an account. Make sure you use the same email address as your admin account in Youmanage (can use Microsoft/Google authentication)
  6. Sign-in using your new login details
  7. Read the message about the integration and click continue if you are happy to proceed
  8. It takes a few minutes for your employees to start pulling through, then you’re ready to go!

Book a consultation

One of our team will be in touch as soon as possible. If we miss you, we’ll send over a Calendly invite so you can choose a more convenient time and date for a callback. 

Get your FREE consultation

Submit your details and one of our team will be in touch.

Search...

Get your FREE consultation

Submit your details and one of our team will be in touch.

Get your FREE consultation

Submit your details and one of our team will be in touch.

Before you go…

We can help with that HR problem or health and safety query. If you’re an employer, leave your details below and our team will call you back.

Register your interest

Submit your details and one of our team will be in touch.

Get your FREE consultation

Submit your details and one of our team will be in touch.

Download your FREE guide

Submit your details below.

Request a callback

Submit your details and one of our team will be in touch.

Need some help?

Call our team now on:

0345 226 8393

Request a Callback

Submit your details and one of our team will be in touch.

Request a Callback
Hi, how can we help?
Click the button below to chat to an expert.