Police Investigations – does this mean a disciplinary hearing should be postponed?

• What should an employer do when an employee is subject to a police investigation?  Proceed or Postpone?
• Proceed, held the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg.
• A doctor faced disciplinary, regulatory and police enquiries after two patients’ deaths
• The Interim Orders Tribunal (‘IOT’) suspended his doctor’s registration and withdrew his licence which led to the Trust seeking to stop his pay
• The High Court and Court of Appeal agreed suspension had to be with pay during the IOT suspension
• The High Court granted an injunction preventing disciplinary proceedings pending the end of the criminal process as they believed this would breach the implied duty to maintain trust and confidence
• The Court of Appeal overturned the injunction and held it was wrong to find that;

o   the Trust would be acting unfairly in inviting the Doctor to a hearing; and

o   that the Trust was in breach of the implied duty to maintain trust and confidence by progressing their own internal disciplinary proceedings without waiting for the completion of the police investigation

Aspire Comment

For staff facing criminal charges, if the alleged wrongdoing poses a threat to the business, colleagues or customers, the first step is often to suspend the employee, but it is important to remember that suspension should not necessarily be seen as a penalty. Suspension should be kept under regular review, and the employee should continue to receive their salary and benefits as normal.

We would always recommend in cases such as this that you ensure you follow your disciplinary procedures (whether contractually binding or not) or the ACAS Code of Practice and that they would continue alongside any police investigations.   Cases for staff facing criminal charges can sometimes take many months to get to Court and waiting for the outcome could cause serious issues within the running of the business.

Here at Aspire, we have extensive experience of dealing with those more complex disciplinary procedures and providing support to clients when handling these processes.