The Claimant was a doctor employed by the NHS. After the deaths of two patients, he faced internal disciplinary procedures and was excluded on full pay. He was referred to the General Medical Council (GMC) and a police enquiry began soon after.

Later, his registration was temporarily suspended, his licence was withdrawn and the NHS Trust sought to stop his pay. The Court of Appeal held that imposition of an interim non-terminatory suspension, where the underlying allegations are disputed, should not lead to a deduction of pay.

However, it also held that the employer was entitled to continue with its own internal disciplinary proceedings without the need to wait for the police investigation to conclude. It held that at no point were the employer’s actions calculated to “destroy or seriously damage” its relationship with the claimant and, in this regard, the Trust was not in breach of the implied term of trust and confidence.

Lastly, there was no rational basis tying the contractual, internal investigation to the conclusion of the ongoing police investigation.

Practical Lessons

The Court saw no obvious reason why an employer must halt their own internal disciplinary procedures when a concurrent police investigation is ongoing. In the present case, nothing in the claimant’s contract suggested this was required and indeed waiting could have prolonged the whole process by months or even years.

Employers may be worried that a disciplinary investigation might undermine a criminal investigation, but this need not necessarily be the case. It is, however, possible that police may request evidence gathered internally and/or statements from those who conducted the investigation.

Of course, an employee under investigation may, out of fear of self-incrimination, remain silent throughout but that is not in itself a reason to halt or delay an investigation that is otherwise considered necessary.  However, whether an employer can establish that they have gathered enough information to establish a reasonable belief in the 'guilt' of the employee in circumstances where the employee refuses to participate will be for a tribunal to determine.