Employment case update | North West Anglia NHS Foundation Trust v Gregg  EWCA Civ 387
After Dr Gregg’s suspension, the North West Anglia NHS Foundation Trust initiated disciplinary proceedings and also notified the police. The CPS decided to investigate the… Read more
After Dr Gregg’s suspension, the North West Anglia NHS Foundation Trust initiated disciplinary proceedings and also notified the police.
The CPS decided to investigate the death of at least one of Dr Gregg’s patients. At the same time, the General Medical Council suspended his registration to practice, and the Trust stopped his salary, relying on the position that an employee’s contractual entitlement to pay is conditional on their being ready, willing and able to perform the work they are employed to undertake.
Dr Gregg received legal advice not to participate in a disciplinary hearing, lest he prejudice himself in the criminal investigation, but the Trust refused to adjourn the hearing. Dr Gregg than applied for and obtained a High Court interim injunction, which prevented the Trust from continuing with its own internal investigation until the police investigation was complete.
The Trust appealed to the Court of Appeal.
The Court of Appeal indicated that an employer does not usually need to wait for the conclusion of criminal proceedings before commencing internal disciplinary proceedings. The threshold for a court to issue an injunction to intervene is high, and requires the employee to show that the continuation of the disciplinary proceedings gives rise to a real danger of a miscarriage of justice in the criminal proceedings.
The Court of Appeal also noted that the Trust was following its contractually-binding disciplinary process in relation to Dr Gregg, which made it harder to argue that they had breached any implied term of trust and confidence. On balance, it followed that the injunction had been wrongly granted.
However, the Court of Appeal agreed with the High Court (and Dr Gregg) that the Trust was not entitled to withhold pay during the period of Dr Gregg’s suspension, noting that:
- the express terms of Dr Gregg’s contract did not permit the deduction of pay during an interim suspension;
- the same was true of the Trust’s own disciplinary policy; and
- there was no evidence of any custom and practice that a temporary suspension permitted the Trust to deduct pay.
While exceptional circumstances, such as an admission of guilt by the employee, might justify an employer’s decision to suspend on nil pay, that was not the case here.
While it remains very rare for an employee to seek an injunction relating to disciplinary proceedings, this is perhaps most likely where the proceedings involve potentially career-ending allegations. This might be in the medical sector, as here, or potentially in the regulated financial sector, where the advent of the regulatory reference regime has added an extra dimension to any disciplinary processes.
The case also serves as a useful reminder that, in a hearing relating to alleged misconduct, the question for the employer is whether it had a genuine belief, on reasonable grounds, that the employee conducted themselves in the manner alleged.
Finally, the fact that it will be challenging for an employer to stop an employee’s pay during a period of interim suspension provides an incentive to employers to deal promptly and efficiently with the disciplinary process.