06 June 2019 - Post by:Robbie Sinclair
When an employee is involved in serious misconduct such as a sexual assault, theft or financial impropriety, it is important to have sight of the bigger picture. If the misconduct has criminal or regulatory implications, does the employer’s internal disciplinary process have to be parked or can it run in parallel with third party investigations?
Usefully this question was addressed recently by the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg. This case involved a consultant anaesthetist, Gregg, who was being investigated in relation to unexpected patient deaths by his employer Trust, but also the medical regulator, the GMC, and the police. The Trust began its own internal disciplinary process before the police notified the Trust of their investigation. Gregg had been advised by his legal team not to participate in the disciplinary process until the CPS took a decision on whether or not to charge him. By continuing the disciplinary process while the police investigation was ongoing, Gregg argued that the Trust was in breach of the implied term of mutual trust and confidence. Whilst at first instance, the High Court agreed on fairness grounds, this part of the decision was overturned by the Court of Appeal.
Green light to progress internal disciplinary processes
The Court ruled that as a general rule, an employer can carry out disciplinary proceedings at the same time as a criminal investigation. One exception is when there is a real risk that the disciplinary process may prejudice the criminal investigation, specifically when it gives rise to a real danger of a miscarriage of justice. Such circumstances would be rare, but one example given was if disciplinary action was likely to attract the level of publicity that might reach and influence potential jurors in criminal proceedings. This might be the case with a high profile defendant or where the surrounding circumstances are reported widely in the media.
The Court made it clear that as employees can choose whether or not they cooperate with the internal disciplinary process, it would only intervene to postpone the internal proceedings where it can be shown there is a “real danger and not merely a notional danger” of a miscarriage of justice.
This case is good news for employers as third party proceedings can be long-drawn-out, making it challenging to know how to manage the employee in the interim. It also avoids the scenario where an employee is acquitted in criminal proceedings and then is subsequently dismissed for breach of company policies or procedures: this can happen as there is a lower burden of proof attached to workplace rules, and the rules themselves are likely be entirely different.
The green light does not mean that employers can plough on regardless – if the police, or other third parties (such as regulators) are involved, consider consulting them about proposed investigative steps – they may have views on how to avoid prejudicing their investigation and on timing. An ongoing dialogue and cooperation with the police and regulators is always the most prudent approach to take.