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Does disciplinary action need to be postponed pending a police investigation?
/ June 2019

Employers are frequently unsure about how to handle a disciplinary process where there is a related police investigation. The Court of Appeal (‘CA’) case of North West Anglia NHS Foundation Trust v Gregg affirms the current position that, in almost all circumstances, it is not necessary for the employer to await the conclusion of the police investigation before concluding the disciplinary process.

The Claimant was a doctor facing disciplinary, regulatory and police enquiries after two patients had died. He was suspended from his employment, a police investigation ensued, and his doctor’s registration was temporarily suspended. The Trust sought to stop his pay following this and the doctor issued proceedings in the High Court.

The High Court (‘HC’) granted an injunction preventing the continuation of the disciplinary process until the police investigation had concluded. The HC’s rationale was that continuing with the disciplinary process would breach the duty of trust and confidence. The HC’s decision was overturned by the CA, stating that the question was whether the conduct of the Trust was calculated to destroy or seriously damage the relationship and, if it was, whether there was reasonable and proper cause for the conduct. It concluded that only a real danger of injustice would warrant an injunction.

The CA did however agree with the HC’s conclusion that suspension must be on full pay.

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