Postponing a Disciplinary
|In a recent case between ‘North West Anglia NHS Foundation Trust v Gregg’; held at the Court of Appeal, the claimant bringing their case to the Court of Appeal was a doctor that was subject to an internal disciplinary investigation, alongside police enquiries into the death of two patients that were in his care.
The initial decision was to suspend the doctor in question, and release him on full-pay. This led to the instigation of the aforementioned police investigation, and the Orders Tribunal ‘IOT’ (professional disciplinary body for the doctor) placing a momentary suspension on the doctors registration. This in turn meant that the doctor’s license was revoked.
When all of the aforementioned occurred, the Trust employing Dr Gregg decided to stop his pay. This led to Dr Gregg initiating proceedings within the High Court.
In turn the High Court placed an injunction upon the proceedings of any disciplinary investigation or hearing, awaiting the end of said criminal proceedings. This was then overturned by the Court of Appeal, who warned against the micro-management of the employment of this individual case. This overturn was warranted by the fact that the Trust was only following their contractual obligation to investigate and conduct disciplinary measures with an employee and therefore the disciplinary hearing could take place.
The crux of the judgement made by the Court of Appeal rested on two poignant tests that needed to be passed:
Due to the particulars of the Doctors contract (something that all employers should review in their employees’ contracts), it was not specified that the employee in the case of suspension would be unpaid, so was liable to paid during their suspension. This was furthermore supplemented by the fact that the Doctor was ready and willing to work, so this would not allow the Trust to place them on unpaid suspension leave.
Both the High Court & Court of Appeal agreed that the employee must receive pay during this IOT period.
The Court of Appeal highlighted in this case it would have been possible to overrule the disciplinary process and jump straight to dismissal. The Doctor in question had lost their license under the IOT suspension. This is incredibly relevant in positions that require licenses, special qualifications, or have other conditions that are required for the employee to be employed. Their contract provided the opportunity for alternate grounds for termination of their contract, clarifying that the initiating of one procedure didn't prevent the Trust enacting another one.
What we can take away from this case is that each individual case needs to be taken on its own merits, as to what the correct course of action is; there is not one single approach you can take to each case. Furthermore, disciplinary hearings can still be carried out for employees even when police are investigating the employee.
This is an incredibly prevalent case, as it highlights the severe situation faced by organisations when it comes to having to suspend an employee and whether or not doing so is the right thing and at the right time. Negotiating this minefield can be daunting and stressful, but it doesn’t need to be, at PACT HR we work to help solve any HR issues in your organisation, as well as offering training opportunities in Coaching in Workplace, Personal Resilience, Leading and Managing Change, and more…
Also if you would like to register your interest and be one of the first to receive an invitation to our upcoming Briefing Sessions and more, speak with one of the team on 01274 436644, email us on Pact-HR@bradford.gov.uk , or reach out to us on Facebook or Twitter for more information on how PACT HR can support you.