Employment Bulletin

Employment Bulletin –
North West Anglia
NHS Foundation Trust
v Gregg [2019]

Employment Bulletin – North West Anglia NHS Foundation Trust v Gregg [2019]

Published: 5th April 2019
Area: Corporate & Commercial
Author: Danielle Humphries

Welcome to the latest edition of our Employment Bulletin, covering North West Anglia NHS Foundation Trust v Gregg [2019].

A recent case has questioned a High Court decision that a Trust would be in breach of contract for failing to pay an employee’s salary during an interim suspension period. Here we explain if the appeal was upheld  by the Court of appeal and highlight what you should do if you find yourself in a similar situation.

What’s the background to the case?

Dr Andrew Gregg (“Gregg”) was suspended by the North West Anglia NHS Foundation Trust (the “Trust”) after concerns were raised in relation to the deaths of two patients in his care.  The Trust launched an internal investigation, began disciplinary proceedings for misconduct and also notified the Criminal Prosecution Services (“CPS”).

The CPS determined that there was insufficient evidence against Gregg to charge him for one of his patient’s death, but continued their investigation into the second death. During this time, Gregg’s registration to practice was suspended by the General Medical Council and the Trust stopped paying his salary.

The High Court found the Trust to be in breach of Gregg’s employment contract for:

• Failing to pay Gregg when he was on interim suspension.
• Proposing to hold a hearing to discuss Gregg’s termination on the grounds of failing to hold registration whilst he was suspended.
• Pursuing their own internal investigations whilst the police were conducting their criminal investigation. Gregg was awarded an interim injunction whilst the criminal investigations continued.

The Trust appealed the decision.

What was the decision of the appeal?

The Court of Appeal (the “Court”) upheld the Trust’s appeal in part.

The Court determined there was no basis through which the Trust could imply a term into Gregg’s contract of employment to deduct pay whilst he was on an interim suspension. The Trust was also unable to provide evidence and establish that there existed a custom and practice which allowed it to deduct pay whilst a member of staff was temporarily suspended.

The Court however, did conclude that the Trust was not obliged to hold a hearing on the alternative basis of failing to maintain registration, as it could have simply terminated Gregg’s contract.

Finally, the Court considered whether the Trust had breached the implied term of trust and confidence by progressing its internal disciplinary proceedings without waiting for the completion of the police investigation. The Court held that employers do not usually have to wait for criminal proceedings to conclude before any internal disciplinary proceedings commence. The Court determined that there was no evidence to suggest that the internal disciplinary process would have any effect on the criminal investigation, “let alone give rise to a real danger of a miscarriage of justice” and ultimately, the Court held that the injunction had been wrongly granted.

What can you learn from this?

• You should review the express terms of your employee’s contract of employment, including any business or sector-specific policies and guidance, in order to determine whether you are entitled to take the decided course of action against them.

• You are not prevented from terminating an employee’s contract where there is an express provision within the contract that allows for this – It is irrelevant if disciplinary or capability proceedings have been instigated on other grounds.

• You are not obligated to wait for the conclusion of criminal proceedings before you conduct your own internal disciplinary procedures, unless such a course of action would give rise to a real danger of a miscarriage of justice in the criminal proceedings, or where you have been requested not to pursue such proceedings by the police.

Back to Thoughts & Insights