News - Mark Sutton QC And Nadia Motraghi Overturn High Court Ruling

Employment & Discrimination - Mark Sutton QC, Nadia Motraghi

Mark Sutton QC and Nadia Motraghi overturn High Court ruling in North West Anglia NHS Foundation Trust v Gregg.

Court of Appeal provides important guidance on permissibility of concurrent criminal and disciplinary proceedings; termination on grounds of non-registration and entitlement to pay during interim suspension.

Summary of Court of Appeal’s decision

The appellant, North West Anglia NHS Foundation Trust, appealed against the decision of Ms Justine Thornton QC (now Thornton J.) that the Trust would be in breach of contract for;

  1. failing to pay Dr Gregg’s salary during the period when he was subject of an interim suspension,
  2. proposing to hold a hearing to discuss the termination of Dr Gregg’s contract on the grounds of his failure to hold the requisite registration during the period of suspension and
  3. pursuing their own internal disciplinary process in parallel with the police investigation, rather than waiting until the charging decision by the CPS.

The Court of Appeal allowed the appeal on issues 2 and 3, and, although they ultimately dismissed the appeal on issue 1, provided important guidance on an employer’s ability to withhold pay whilst an employee is suspended.

Background

Dr Gregg was excluded by the Trust in April 2016 following an incident report into the death of patient A. In May 2016 the police informed the GMC that Dr Gregg was under investigation for the unlawful killing of Patient A. Dr Gregg provided an explanation to the police via a signed statement and was released on bail. Following a further investigation, Dr Gregg was interviewed by the police in May 2017 in respect of Patient B. He again provided an explanation via a signed statement and was released on bail.

As a result of the matters raised in the investigations, the Interim Orders Tribunal suspended Dr Gregg and withdrew his licence to practise for the period of the suspension, pursuant to s41C Medical Act 1983. Due to the imposition of the interim suspension, and having maintained his pay whilst excluded for a period of 16 months, the Trust lifted Dr Gregg’s exclusion and informed him that his pay would be suspended, on the basis that he was not able to discharge his contracted role due to the terms of the interim suspension. The Trust attempted to continue with the disciplinary process against Dr Gregg whilst the criminal investigation was ongoing. They specifically sought to hold a disciplinary hearing to consider whether Dr Gregg’s employment could be terminated in the circumstances.

Issue 1 – Entitlement to deduct pay

The Court of Appeal gave the following guidance as to the general approach to be taken when considering the question of deduction of pay in context of suspensions;

  1. was the deduction of pay for the period of suspension in accordance with the express or implied terms of the contract?
  2. If not, is the deduction in accordance with custom and practice?
  3. If not, then does the ‘ready, willing and able’ common law principle permit a deduction?

It was held that there was neither a contractual entitlement to deduct, nor any evidence that a custom or practice permitted a deduction. Considering the common law principle of ‘ready willing and able,’ the Court concluded that in most cases “[67]…the imposition of such a suspension, which is not voluntary and might be regarded as the unavoidable consequence of s.47,  should not lead to a finding that a doctor who is subject to the suspension is not ‘ready willing or able to work’, and/or to justify the deduction of the doctor’s pay for the period of the interim suspension”.

The Court went on to outline the general principle that “[69]…in a situation where the contract does not address the issue of pay deduction during suspension, the default position should be that, in the ordinary case, an interim, non-terminatory suspension should not attract the deduction of pay. There may be exceptional circumstances (such as a complete or part admission of guilt) which might justify such a deduction, but they would not ordinarily arise.”.

In this case it was held that there were no such exceptional circumstances and, as such, there could be no deduction of pay for the duration of the interim suspension.

Issue 2 – Holding a hearing to discuss termination

The Court found that the judge was wrong to find that it would not be fair to Dr Gregg for the Trust to hold a hearing to determine whether he could be dismissed based on the suspension of his licence. It was emphasised that the holding a hearing was undoubtedly fair as it was more than the Trust was obliged to do under the strict terms of the contract.

Issue 3 – Postponement of the Trust’s disciplinary process

It was held to be entirely reasonable for the Trust to decide that they did not want to wait for the conclusion of the police investigation before they commenced the disciplinary process, and that the judge had applied the wrong test in considering this issue.

The Court of Appeal provided valuable clarification as to the scope of the trust and confidence term in the conduct of disciplinary proceedings and how any alleged breach of the term should  be analysed. The Court held that the judge had repeatedly and wrongly equated the implied term of trust and confidence with a more generalised obligation to act fairly and had failed to apply the “severe” test required by authorities such as Gogay to demonstrate breach of the implied term.

The judge had failed to ask whether the conduct was “calculated to destroy or seriously damage the relationship” and whether there was “reasonable and proper cause” for that conduct. Applying this test, the Court of Appeal found nothing to justify the assertion that the Trust’s conduct in pursuing its own internal disciplinary procedure was calculated to destroy or seriously damage its relationship with Dr Gregg.

Furthermore, there was no real danger of a miscarriage of justice and it was impossible to see any prejudice when Dr Gregg had already supplied police with statements in respect of Patient A and B. The fact that Dr Gregg had received legal advice telling him not to participate in the process was also not decisive.

The doctor’s application for permission to appeal to the Supreme Court was refused by the Court of Appeal.

[Case summary by Grace Boorer, pupil at Old Square Chambers]

Mark Sutton QC and Nadia Motraghi, instructed by Mills & Reeve LLP, for the Appellant.

To view the full judgment, please click here.

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