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The Court of Appeal has considered whether an employer must postpone a disciplinary hearing pending the outcome of a police investigation into an employee in North West Anglia NHS Foundation Trust v Gregg.

The claimant was a doctor facing disciplinary, regulatory and police enquiries after two patient deaths. He was suspended and a police investigation commenced. When a professional disciplinary body (the Interim Orders Tribunal (IOT)) temporarily suspended the doctor's registration and withdrew his licence the Trust stopped his salary. The claimant's lawyer advised him not to participate in a disciplinary hearing as he would risk prejudicing himself in the criminal investigation. When the Trust refused to adjourn the investigation, the claimant brought High Court proceedings for an interim injunction. The High Court granted an injunction preventing disciplinary proceedings pending the end of criminal proceedings, but the Court of Appeal overturned this. It held that the question was 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. Only a real danger of injustice would justify an injunction, and here the Trust was following its own contractually binding disciplinary procedures, and the doctor was contractually obliged to participate in the process.

The Court of Appeal then considered the issue of the claimant's suspension without pay and found that the Trust had not been entitled to do this. The express terms of the claimant's contract did not permit the deduction of pay during an interim suspension. The claimant was ready, able and willing to work, but the decision of a third party tribunal had removed his registration to do so. Where the contract did not address the issue of pay during suspension the default position should be that an interim suspension should not attract a reduction of pay.

Take note: The decision in Gregg confirms that there will generally be no need to suspend contractual disciplinary proceedings until the outcome of any criminal proceedings is known. In addition, unless there's a contractual right to do so, an employer should not stop an employer's pay during a period of interim suspension.

This article is taken from HR Law - April 2019.