Thu 05 Jul 2018

Disciplinary hearings and criminal investigations - no easy answer

Employers are often very conscious of the risk of progressing disciplinary investigations when there is a concurrent police investigation. A recent case explores this issue…

The interaction of criminal investigations and disciplinary hearings can be a bit of a minefield.  First of all an employer needs to establish whether disciplinary action is appropriate at all - if the alleged criminal act has taken place away from the workplace it may not be, depending on the circumstances and the nature of the conviction.  Assuming that the criminal matter does impact on the employee's suitability to do his job and their relationship with the employer, work colleague or customers the employer still needs to consider the timing of any disciplinary  procedure. 

Police investigations can be lengthy affairs, so delaying a disciplinary can be costly if the employee is suspended on full pay.  It also runs the risk of an employee claiming there has been unreasonable delay in the disciplinary process which could prejudice their defence and potentially render a subsequent dismissal unfair.  Equally, proceeding with the disciplinary process could result in the employee prejudicing their defence to any criminal charges. 

In the case of Gregg v North West Anglia NHS Foundation Trust the allegations against Dr Gregg, a consultant anaesthetist, centred on whether he had inappropriately hastened the death of patients in his care - something which could result in imprisonment in the event of conviction.  The allegations were strenuously denied by Dr Gregg.  The facts of the case are a little convoluted with multiple allegations being made against Dr Gregg, but the gist of it was the Trust decided to proceed with their disciplinary proceedings while the Criminal Prosecution Service were still considering whether to press charges against Dr Gregg.  Dr Gregg's legal advisers were of the view that he would be "put in a most invidious and potentially highly prejudicial position" if the disciplinary procedure progressed and he was advised not to participate should it proceed.  That was despite the fact that he did want to have an opportunity to present his defence to his employer.   

This resulted in Dr Gregg seeking an injunction in the High Court restraining the Trust from progressing the disciplinary procedures, pending a decision by the CPS on whether to press criminal charges.  The High Court granted the injunction finding that the Trust was in breach of the implied term of mutual trust and confidence in refusing to adjourn the disciplinary process pending the decision of the CPS.  Proceeding would mean Dr Gregg would have to choose between presenting his defence and the legal advice he had been given not to participate. 

Whether or not to proceed with disciplinary proceedings will require an employer to weigh up the potential prejudice to the employee of proceeding with the need to conclude the disciplinary process.   The EAT has held that employers have a "wide discretion" when deciding whether disciplinary action should proceed concurrently with a police investigation and employers should ensure they have fully considered the position of both parties (something that the Trust were criticised for failing to do in this case) and that they can evidence having done so. 

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