This article was published on April 8th, 2019
In professional misconduct cases, a criminal investigation often sits alongside a disciplinary investigation. Employers do not want to wait for the outcome of the criminal case before concluding disciplinary proceedings, especially when the employee is suspended on full pay. The Court of Appeal looked at this issue in North West Anglia NHS Trust v Gregg, in a case involving a doctor.
Dr Gregg was accused of causing the early deaths of several patients. The Trust started disciplinary proceedings and told the police. The doctor was advised by his legal team not to participate in the disciplinary proceedings in case he prejudiced the criminal case. The Trust refused to adjourn the proceedings. Dr Gregg sought, and was granted, a High Court injunction stopping the disciplinary process until the criminal case had concluded. The judge found that pursuing the disciplinary process rather than waiting to see if he was charged with a crime breached the implied term of mutual trust and confidence.
The Court of Appeal disagreed. The correct test was twofold: firstly, was the conduct of the employer was designed to destroy or seriously damage the relationship with the employee? Secondly, was there reasonable and proper cause for those steps? The Court of Appeal said the Trust’s conduct was not designed to damage the relationship. They also said the Trust had reasonable and proper cause for wanting to pursue the disciplinary process against Dr Gregg. An injunction should only be granted if there is a real danger of a miscarriage of justice, which there was not in this case. Legal advice not to engage in the process is not enough to justify an injunction.
The court in this case essentially said the Trust should have been allowed to get on with it. The test applied by an employer (genuine belief in guilt based on reasonable grounds) is much lower than the criminal test of proving allegations beyond reasonable doubt. That is another reason to treat the two processes differently. Employers will not usually need to wait for the outcome of criminal proceedings before concluding their own investigations.