Must disciplinary proceedings await outcome of criminal investigation?

In an appeal in which Mills & Reeve has been representing the employer, the Court of Appeal has given some helpful clarification about when internal disciplinary proceedings should be postponed where there is a parallel criminal investigation. It has said that in most cases an employer will be contractually entitled to proceed unless the employee can show that there is a “real danger” that continuing would result in a miscarriage of justice.

The appeal concerned a number of complex issues surrounding the suspension of a doctor on issues concerning patient safety, which will only arise in the context of the NHS.  However the issue the employer faced in deciding whether to postpone the disciplinary hearing to await the outcome of a police investigation is of wider interest.

In this case the doctor succeeded in obtaining an injunction in the High Court, which was overturned on appeal. The Court of Appeal was able to review the earlier case law and give guidance on an issue that does not appear to have considered by the Court of Appeal before.

The Court gave the following guidance about how to assess whether a decision to proceed with disciplinary proceedings, up to and including dismissing the employee, could amount to a breach of the implied duty of trust and confidence and so entitle the employee to apply for an injunction:

• The cases show that an employer considering dismissing an employee does not usually need to wait for the conclusion of any criminal proceedings before doing so.
• It must necessarily follow that it does not usually need to wait for the conclusion of criminal proceedings before commencing/continuing internal disciplinary proceedings, although such a decision is clearly open to the employer.
• The court will usually only grant an injunction if the employee can show that the continuation of the disciplinary proceedings will give rise to a real danger (and not merely a notional danger) that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.

In other words, there will be cases where an employer will be in breach of contract if it proceeds with a disciplinary where the employee is also at risk of criminal prosecution, but these will be rare. One relatively recent example is another case from the NHS sector which involved a doctor who was faced with the very serious accusation of issuing a large number of cremation certificates without viewing the body.  But in that case the police were “imploring” the Trust not to go ahead, and the delay requested was estimated to be no more than two weeks.

This new guidance doesn’t make the task of employers any easier in conducting what is often a difficult balancing act. It does however offer them some help in defending a decision to proceed, where they decide that this is the best approach for the organisation as a whole.

Three final points:

• In this case the written disciplinary procedure didn’t deal with this precise issue. If it had done, the employer would have had to follow any additional requirements set out there, but in most cases there won’t be any.
• The issue addressed was whether an employee is entitled to an injunction to prevent the disciplinary process going ahead. Different considerations would apply when assessing whether any subsequent dismissal was fair, although the issues are likely to overlap.
• Cases where an employee can apply for an injunction in the absence of a contractual disciplinary procedure will be very rare.