Opinion

The disciplinary process and police investigations

28th March 2019

The disciplinary process and police investigations

In a recent case the Court of Appeal ruled that an employer’s decision to continue with a disciplinary hearing whilst there was an ongoing police investigation into the employee did not satisfy the “severe test” for a breach of the implied duty of maintaining trust and confidence. What does this mean for the disciplinary process in your organisation?

In the case of North West Anglia Foundation Trust v Gregg, the Court of Appeal held that the employer was not required to postpone a disciplinary hearing while awaiting the outcome of a police investigation into an employee.

In this case, the employee was subject to disciplinary, regulatory and police investigations after the death of two of his patients. The employee was suspended and the employer sought to cease payment of his salary. As such, the employee went to the High Court.

The High Court had granted an injunction to cease the disciplinary proceedings pending the outcome of the police investigation and held that the suspension had to be with pay. The matter proceeded to the Court of Appeal.

The Court of Appeal overturned the injunction as they disagreed with the High Court’s view that continuing with the disciplinary process would amount to a breach by the employer of the implied duty to maintain trust and confidence. As the employer was simply following its contractually-binding disciplinary procedures the Court of Appeal felt that the decision to continue with the disciplinary hearing did not satisfy the “severe test” for a breach of the implied duty of maintaining trust and confidence. Further, the employer had been informed that the police had no objection to the continuation of the employer’s disciplinary process while they conducted their own investigation.

The Court of Appeal felt that there would be a breach of the implied term by continuing a disciplinary process while the police investigation is ongoing if the continuation will give rise to a “real danger, and not merely a notional danger, that there will be a miscarriage of justice in the criminal proceedings if the court did not intervene”.

The Court of Appeal agreed with the High Court’s judgment that the suspension had to be with pay under the contract terms which were to be followed by the professional disciplinary body who had suspended the employee. 

Considerations for Employers

In almost all circumstances there will be no requirement to postpone a disciplinary hearing until the conclusion of a police investigation. It is advised that you consider the facts on a case by case basis and ask the police for their view on continuing your internal investigation into the employee.

This case is also a reminder to review the suspension clauses in your employees’ contracts of employments if you intend to be able to suspend without pay.

If you would like to discuss how to navigate your way through a disciplinary process and the decision to suspend employees, a member of the Employment team would be happy to help.

 

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