Can disciplinary proceedings continue alongside a police investigation?

Published on: 28/03/2019

#Discipline & Grievance

In North West Anglia NHS Foundation Trust v Gregg, the Court of Appeal overturned an injunction that had prevented an employer from continuing with disciplinary proceedings pending the outcome of police enquiries.

A doctor faced disciplinary, regulatory and police investigations after the death of two patients. The High Court concluded that by conducting disciplinary proceedings in parallel with ongoing criminal investigations, the NHS Trust would be in breach of the implied duty to maintain trust and confidence. An injunction was therefore granted.

The reasoning of the High Court was largely based on a risk to the fairness of the criminal proceedings. It was thought that potential information sharing between the employer and police as a result of the disciplinary investigation could in some way prejudice the employee’s position regarding the police investigation.

In overturning the injunction, the Court of Appeal reiterated that the test for breach of the implied duty to maintain trust and confidence was a “severe” one. It was not appropriate for it to be watered down into a general obligation to act fairly. The questions that must be asked are:

  • Whether the conduct of the employer was calculated to destroy or seriously damage the relationship; and
  • Even if it was, whether there was reasonable and proper cause for that conduct.

In this case, there was nothing to justify the assertion that the Trust’s actions were calculated to destroy or seriously damage its relationship with the doctor concerned. By carrying out its disciplinary investigations, the employer was pursuing its contractually-binding process and the employee was contractually obligated to participate. The focus of the two proceedings were likely to be very different, with different evidential standards.

There might occasionally be situations where internal disciplinary proceedings should be delayed. However, the Court of Appeal declined to draw up a list of relevant factors and warned courts against “micro-managing”. Instead, it was stressed that an injunction would only be justified where there was a real danger of injustice.


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