Can an employer breach the implied duty of trust and confidence by proceeding with a disciplinary investigation whilst there is an ongoing police investigation?

This question was considered in the case of North West Anglia NHS Foundation Trust v Gregg.

The facts

Dr Gregg commenced employment with North West Anglia NHS Foundation Trust in 2003. The Trust became aware of a number of serious concerns regarding Dr Gregg’s conduct in 2016 and 2017. The Trust notified the police and commenced disciplinary proceedings pursuant to Maintaining High Professional Standards (MHPS). Dr Gregg was suspended on full pay.

Whilst the police investigation was ongoing the Trust decided to proceed with the disciplinary hearing. Dr Gregg did not participate in the disciplinary proceedings as he was concerned that he would be prejudicing himself in the criminal investigation. The Trust nevertheless decided to proceed with the disciplinary allegations.

Dr Gregg successfully obtained an injunction in the High Court preventing the Trust from continuing with its investigation whilst the police investigation was ongoing.

The High Court held:

The Trust would have been in breach of the implied term of trust and confidence for pursing its own internal disciplinary process in parallel with an investigation by the police. The Trust appealed to the Court of Appeal.

The Court of Appeal held:

The Court of Appeal held that the Trust was not in breach of the implied duty of trust and confidence in pursuing its own internal procedures. It held that there was no basis on which to find that by progressing with the internal procedures that the Trust’s conduct was calculated to destroy or seriously damage the relationship of trust and confidence by pursuing its contractually binding disciplinary process.

Comment

This is helpful guidance for employers when faced with dealing with misconduct allegations and criminal proceedings. Employers are not required to wait for the conclusion of criminal proceedings unless such course of action would give rise to a real danger of a miscarriage of justice on criminal proceedings.

If you have any questions then please contact Sejal Raja on Sejal.Raja@rlb-law.com

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