The Court of Appeal has ruled that the High Court wrongly granted an interim injunction to an employee preventing his employer from continuing with its internal disciplinary proceedings until the conclusion of a criminal investigation into the same allegations. The court will usually only intervene if the employee can show that continuation of the internal proceedings would give rise to a real danger of miscarriage of justice in the criminal proceedings, which was not shown in this case. There was no breach of the implied term of trust and confidence. The Court also gave some helpful guidance on when it may be lawful to suspend without pay under contractual or common law principles.

Facts

The Claimant was employed as a consultant in anaesthetics. He was suspended with full pay following concerns that his actions may have hastened the deaths of two patients. Those concerns were reported to the GMC and to the police. The Interim Orders Tribunal ("IOT"), part of the GMC, suspended the Claimant's registration to practice, following which the Trust withheld his pay on the basis that he was not ready, willing or able to perform the work he was employed to undertake. The Claimant refused to attend the Trust's disciplinary hearing having taken advice from his lawyer that participation may prejudice himself in the criminal investigation. The Claimant applied successfully for an interim injunction preventing the Trust from continuing with its disciplinary process until the criminal investigation had completed. The Court also found that the Trust was in breach of contract by failing to pay the Claimant during the interim suspension. The Trust appealed.

Decision

The Court of Appeal ruled that the injunction was wrongly granted. The Trust did not breach the implied term of trust and confidence by continuing with its contractual disciplinary process. However, it held that the Claimant was entitled to be paid during the suspension.

No breach of contract in continuing with the disciplinary process

The Court noted that it is quite legitimate for a doctor to be subjected to parallel proceedings vis-a-vis their employer and the GMC. The Court went on to consider whether the fact that the parallel proceedings related to a criminal investigation made any difference and derived the following principles from the existing case law:

  • An employer would not ordinarily need to wait for criminal proceedings to conclude before considering dismissal,
  • Nor would it usually need to wait before commencing or continuing with disciplinary proceedings although it could choose to do so,
  • A court will usually only intervene if the employee can show that continuation with the internal proceedings would give rise to a real danger of miscarriage of justice in the criminal proceedings,

The High Court had applied the wrong test when considering whether to grant the injunction as it equated the implied term of trust and confidence with a general duty of fairness. The test for a breach of trust and confidence is whether there is reasonable and proper cause for the employer's conduct and whether the employer's conduct is calculated to destroy or seriously damage the relationship of trust and confidence. Re-exercising the court's discretion on the facts as it found, it could not be said that the Trust's decision to continue with the disciplinary process was conduct calculated to destroy or seriously damage the employment relationship - on the contrary, it was working hard to ameliorate a difficult situation. It was also plainly reasonable and proper for the Trust to want to operate its contractual disciplinary process.

Claimant was entitled to be paid during the suspension

There was no express term in the Claimant's contract allowing for his suspension to be without pay; nor was there any evidence of custom and practice that an interim suspension permitted the Trust to withhold pay. The Court stated that in the absence of any such express provision, the default is that an interim, non-terminatory suspension should not be without pay unless there are exceptional circumstances, for example, where there is a full or partial admission of guilt, which was not the case here.

Turning to the common law principles of being "ready, willing and able" to work, the Court derived the following principles from the existing case law:

  • If an employee does not work, they have to show that they are ready, willing and able to perform that work if they wish to avoid a deduction to their pay
  • If they are ready and willing to work, and the inability to work is the result of a third-party decision or external constraint, a deduction of pay may be unlawful
  • Where the inability to work is due to a lawful suspension imposed by way of sanction, it will be lawful to deduct pay
  • However, if the inability to work is due to an "unavoidable impediment" or was "involuntary", the deduction of pay may be unlawful
  • Where the employee is accused of criminal offences, the issue cannot be determined by reference to the employee's ultimate guilt or innocence, nor simply by reference to whether they were granted bail

In this case, the Claimant's inability to work was caused by a third party, the IOT, and was "involuntary" therefore the failure to pay him during his suspension was unlawful.

Comment

This decision is helpful in showing that courts will generally be reluctant to intervene in an employer's disciplinary procedures where there are parallel criminal or regulatory proceedings unless the employee can show that continuing with them would give rise to a real danger of miscarriage of justice in the external proceedings. The decision also sets out a useful summary of the principles regarding the legitimacy of withholding pay during a suspension.

North West Anglia NHS Foundation Trust v Gregg, Court of Appeal