The Court of Appeal – Disciplinary Hearings and Police Investigations

The Court of Appeal’s decision in North West Anglia NHS Foundation Trust v. Gregg [2019] EWCA Civ 387 brings some welcome reassurance to employers that it remains viable to run internal Disciplinary Hearings and Police Investigations. Only in very limited circumstances is there any requirement on an employer to delay pending the outcome of criminal proceedings.

Following the Court of Appeal decision in North West Anglia NHS Foundation Trust v Gregg, do you as an employer have to wait until the police investigation has concluded before conducting an internal process?

In this case Dr Gregg faced disciplinary, regulatory and police investigations after the death of two patients. The High Court concluded that by conducting disciplinary proceedings whilst criminal investigations were ongoing, the Trust would be in breach of the implied duty to maintain trust and confidence. The High Court therefore granted an injunction to prevent the Trust from continuing with the disciplinary proceedings.

The reasoning of the High Court was largely based on a risk to the fairness of the criminal proceedings. It was thought that potential information sharing between the employer and police as a result of the disciplinary investigation could in some way prejudice the employee’s position regarding the police investigation.

The Trust appealed the decision and the Court of Appeal overturned. The Court of Appeal reiterated that the test for breach of the implied duty to maintain trust and confidence was a “severe” one. It was not appropriate for it to be watered down into a general obligation to act fairly. The questions that must be asked are:

  • Whether the conduct of the employer was calculated to destroy or seriously damage the relationship; and
  • Even if it was, whether there was reasonable and proper cause for that conduct.

In this case, there was nothing to justify the assertion that the Trust’s actions were calculated to destroy or seriously damage its relationship with Dr Gregg.  By carrying out its disciplinary investigations, the Trust was following its contractual process and the doctors was therefore contractually obligated to participate.  The focus of the two proceedings were likely to be very different, with different evidential standards.

There might occasionally be situations where internal disciplinary proceedings should be delayed. However, the Court of Appeal declined to draw up a list of relevant factors and warned courts against “micro-managing”. Instead, it was stressed that an injunction would only be justified where there was a real danger of injustice.

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice.

If you require any further information our Employment Team can offer legal advice and support. Please call us on 01603 751926 or email hr@hansells.co.uk.