Should an employer delay its disciplinary process pending criminal charges?

The High Court has recently granted an injunction to a doctor to restrain his employer from proceeding with its internal disciplinary processes until the CPS has made a decision whether to charge him with criminal offences. The NHS trust’s refusal to delay its disciplinary processes had breached the implied term of mutual trust and confidence.

Legal background

When faced with an employee who is undergoing a criminal investigation/prosecution the employer must consider:

• whether the conduct justifies disciplinary action – a police investigation, criminal charge or conviction related to off-duty conduct is not necessarily a reason for disciplinary action in itself
• if so, whether or not to postpone the internal disciplinary proceedings until the outcome of the criminal investigation or proceedings is known

An employee being subjected to a criminal investigation or charges will often be advised by their lawyers not to participate in their employer’s disciplinary process because of fears that anything they say may incriminate them, or prejudice their defence of the criminal charges. When considering whether to delay internal disciplinary proceedings in those circumstances, the employer must look at all of the circumstances and balance its need to conclude the disciplinary process against the possible prejudice to the employee. There are no hard and fast rules, it may be reasonable to proceed with the disciplinary action, but sometimes it is reasonable to postpone it (Harris -v- Courage (Eastern) Ltd [1982] ICR 530). Discretionary decisions taken in an employment context must be exercised in a way that is rational and not capricious (Braganza -v- BP Shipping [2015] 1 WLR 1661).

Factual background

The employee, G, a consultant anaesthetist, was alleged to have inappropriately hastened the death of patients in his care. Those allegations were being investigated by his NHS trust employer, the police and the General Medical Council. The trust intended to proceed with its internal disciplinary procedures whilst the police investigation was still ongoing. G therefore sought an injunction to restrain the trust from proceeding with its internal disciplinary processes until the CPS had made a decision whether to charge him with criminal offences. G argued that the trust’s refusal to delay its disciplinary processes had breached the implied term of mutual trust and confidence.

High Court decision

On the facts of G’s case, it was unreasonable and a breach of the implied term of mutual trust and confidence for the trust to refuse to adjourn its internal disciplinary processes until the CPS had decided whether to charge G with criminal offences. Proceeding would place G in the impossible position of having to second guess the legal advice he had received not to participate in any internal disciplinary hearing whilst criminal investigations/procedures were pending. Delay by the police and CPS was not a reason to penalise G by proceeding with the disciplinary proceedings. The High Court therefore granted G an injunction to prevent the trust from proceeding with its disciplinary procedure until a charging decision has been made by the CPS.

Gregg -v- North West Anglia NHS Foundation Trust [2018] EWHC 390

Note: The court was also asked to consider other matters which are beyond the scope of this article.