Is it still viable to run an internal disciplinary process alongside criminal proceedings?

The Court of Appeal’s decision in the case of 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 processes alongside criminal proceedings. Only in very limited circumstances is there any requirement on an employer to delay pending the outcome of those criminal proceedings.

Following the death of two patients under Dr Gregg’s care and a regulatory investigation, Dr Gregg’s  registration was suspended by a professional disciplinary body and his licence withdrawn. He objected to attending internal disciplinary interviews whilst the police investigation was ongoing. The Trust then tried to stop Dr Gregg’s pay and so he brought proceedings in the High Court. The High Court judge granted an injunction preventing the Trust from continuing its internal investigation into the patient’s death whilst the police investigation was ongoing. The judge stated that the Trust’s refusal to adjourn the disciplinary process was a breach of the implied term to maintain trust and confidence within Dr Gregg’s employment contract.

The Court of Appeal disagreed. The Court of Appeal emphasised that an implied term of trust and confidence is not an implied term to act fairly. The Court of Appeal acknowledged that it is often impractical to wait until a criminal trial takes place before making a decision on the employee’s future employment and confirmed that there is no absolute rule stating that an employee cannot be dismissed before their criminal trial.

If there is not a real risk of a miscarriage of justice and the employer’s disciplinary process was not calculated to destroy or seriously damage the relationship between itself and the employee without a reasonable and proper cause, this decision reaffirms that an employer can legitimately dismiss an employee before criminal proceedings are concluded.

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Michelle Lamb

About Michelle Lamb

Michelle is a senior associate in the Employment team. She advises public and private employers on all aspects of contentious and non-contentious employment law, but specializes in TUPE, change programs, employment aspects of corporate transactions and discrimination complaints. Michelle regularly procures advice from other jurisdictions to support Dentons' multinational client base.

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