Does an employer have to wait until an external investigation has been concluded?

We have been involved in a number of cases recently where there are disciplinary allegations against an employee which are also the subject of a police or other external or regulatory investigation. Sometimes employers believe that they have to wait until the outcome of the external process before they take any internal action – and in fact, the police often ask employers to hold off carrying out any internal investigation to avoid compromising their processes. What does employment law say about where this leaves employers – and how long do they have to wait?

The recent case of North West Anglia NHS Foundation Trust v Gregg dealt with this point (along with some other issues, which we won’t cover here) and is useful guidance for employers who find themselves in this situation.

The facts

Dr Gregg was a consultant in anaesthetics for the Trust. Following the death of two patients (Patient A and Patient B), he was suspended while an investigation was undertaken. An investigation report was prepared into the death of Patient A, and he was suspended on full pay.

A few weeks later, the police informed the Trust that they were investigating Dr Gregg for unlawful killing of Patient A. Dr Gregg attended a police interview and gave a statement. They then said they would also want to investigate the death of Patient B, and again Dr Gregg was interviewed and gave a statement.

The police told the Trust that they had no objection to an internal investigation being undertaken. However, Dr Gregg and his legal advisers said that this would be a problem, and asked for the internal investigation into Patient B’s death to be put on hold. Dr Gregg did not attend the investigatory meeting, saying that he had received legal advice not to participate until the CPS had made their decision regarding potential prosecution.

Dr Gregg argued that the Trust’s decision not to put the process on hold was a breach of contract, in that it was contrary to the implied duty of trust and confidence between employer and employee.

The decision

The matter was dealt with at the High Court where the judge found that there had been a breach of contract. The Trust appealed to the Court of Appeal.
The Court of Appeal analysed the relevant case law in this area, and summarised it as follows:

a) An employer considering dismissing an employee does not usually need to wait for the conclusion of any criminal proceedings before doing so

b) An employer does not usually need to wait for the conclusion of criminal proceedings before commencing/continuing internal disciplinary proceedings, although such a decision is clearly open to the employer

c) The court will usually only intervene if the employee can show that the continuation of the disciplinary proceedings will give rise to a real danger (and not merely a notional danger) that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene

There are a lot of ‘usuallys’ in there, which shows that there are no absolutes. Taking the circumstances of the case into account, the Court of Appeal concluded that there had not been a breach of the implied duty of trust and confidence. In this case, there was no evidence at all that going ahead with the internal investigation would have any effect on the criminal investigation, let alone give rise to a real danger of a miscarriage of justice.

The fact that Dr Gregg had received legal advice not to take part was a factor to be considered, but could not be the final answer, otherwise legal advisers might always advise their client not to participate so as to delay the outcome.

Finally, the Court of Appeal concluded that:

“the final point to make is to highlight the obvious fact that the focus of the internal disciplinary process is very different to the focus of the criminal proceedings. The latter is concerned with guilt beyond reasonable doubt; moreover, in a case of this sort, where the charge would be manslaughter by gross negligence, the evidential threshold is necessarily of the highest. In the disciplinary process, the question is whether the Trust has a genuine belief on reasonable grounds that Dr Gregg conducted himself in the manner alleged.”

The case will therefore be a useful to employers in order to demonstrate that they can continue with their internal investigation if the relevant tests are met, as well as being a reminder that an employer’s process does not need to work on the ‘beyond reasonable doubt’ standard which is applied in the criminal courts. These kinds of situations are always tricky so it is always best to take advice.