This article originally appeared in Issue 1 (May 2019).
A Consultant Anaesthetist obtained an injunction from the High Court to prevent his employer, an NHS Trust, proceeding with a disciplinary investigation into patient deaths whilst a parallel police investigation took place. The Court of Appeal held that the injunction was wrongly granted. The Trust was entitled to proceed with the investigation as no real danger of any miscarriage of justice in any criminal proceedings had been established. The Trust was also entitled to hold a hearing to consider whether the doctor could be dismissed on the alternative basis that his registration to practice had been subject to interim suspension by his regulator. However, there was no provision in his contract that enabled the Trust to withhold his salary during his suspension and it was unlawful for the Trust to have done so.
The NHS Trust had concerns that the doctor had hastened the death of a patient in intensive care. Following an investigation, including a disciplinary interview, he was suspended on full pay pending a hearing. He was referred to the GMC and the police commenced their own investigation but brought no charges. Meanwhile, a second patient death was identified by the Trust as being of concern and the police commenced a further investigation. The doctor objected to being interviewed in relation to the second case by the Trust whilst the criminal investigation was ongoing. A request for a postponement was refused and the doctor sought injunctive relief.
The doctor also sought relief in respect of the Trust’s actions following the Medical Practitioners Tribunal Service’s (‘MPTS’) decision to impose an interim suspension on his registration to practice. The Trust took the view that it could revoke its own suspension of the doctor and cease paying his salary. It argued that the doctor was no longer available for work in the terms contemplated by paragraph 25 of Part II of the Department of Health document ‘Maintaining High Professional Standards in the Modern NHS’ (‘MHPS’) which was incorporated within his contract of employment. In any event, under common law principles, he was not “ready, able and willing to work”. The Trust also contended that it was entitled to terminate his contract on that basis and that it would convene a hearing to consider whether to do so, which the doctor also sought to prevent.
Deduction of pay during suspension
The judge had determined the issue of deduction of pay during suspension solely on the basis that paragraph 25 of Part II of the MHPS applied. She held that pay could only be deducted under this provision where an employee had become unavailable for work as a result of some self-induced cause, rather than the action of a third party.
The Court of Appeal upheld the judge’s conclusion but on different grounds. It noted that the doctor’s suspension by his regulator was designed to preserve the position until more was known about the allegations and to allay public concern until they were resolved. The suspension did not terminate the doctor’s employment. The court held that, given the increasing complexity of contracts of employment, the issue of whether or not suspension without pay is appropriate must be determined by reference to the contract in question. The common law test of being “ready, willing and able” to work had been applied inconsistently in recent cases, but where the inability to work had arisen as a result of a third party decision or “unavoidable impediment” it may be unlawful to deduct pay, depending on the terms of the contract.
Moreover, the approach to the concept of “unavoidability” on the basis that it was to be “narrowly construed” was wrong in principle. To suggest that suspension arising from unproven allegations about an employee’s actions or the bringing of criminal charges was “avoidable” was uncomfortably close to an assumption of guilt.
In the instant case, the express terms of the contract did not permit the deduction of pay during an interim, non-terminatory suspension. Had this been intended the contract would have said so. Such a term could not be implied – it was not necessary to make the contract work, nor was it “obvious” and it would, in any event, run contrary to the mandatory terms of the contract as to payment.
Paragraph 25 of Part II of the MHPS was not of direct relevance since it only applied during the period of exclusion by the Trust, which had been revoked when the MPTS interim suspension was imposed. However, it was of some assistance in supporting the court’s analysis as it provided that exclusion would normally be on full pay. That was also the position under the Trust’s own disciplinary policy.
There was no custom or practice or any alternative basis upon which the Trust could rely to deduct pay. There might be exceptional circumstances such as a complete or partial acceptance of guilt justifying deduction of pay during an interim, non-terminatory suspension but the default position where the contract does not address the issue would be that it should not.
Termination of employment due to interim suspension of registration
The Court of Appeal noted that the judge had taken the view that the Trust was entitled, pursuant to the express terms of Schedule 19 of the Terms and Conditions of employment, to terminate the doctor’s contract on the grounds that he had not maintained his registration to practice. However, she held that, as the Trust had not terminated the contract, but had decided to hold a hearing to decide whether to do so, it had, in fact, elected to treat the contract as continuing notwithstanding the “repudiatory” action of the doctor in failing to maintain registration and were proposing an unfair process in seeking to hold a hearing as a “nebulous alternative”.
The Court of Appeal disagreed with the judge as to the proposal to hold a hearing to consider whether to terminate. The Trust was attempting to give the doctor an opportunity to address the issue at a hearing, though it was not obliged to do so, and this could not be criticised as unfair or in breach of the implied term of trust and confidence. The judge was, in any event, wrong to equate the implied term of trust and confidence with a general duty to act fairly. The test to show that an employer is in breach of that term is a “severe” one and must amount to conduct calculated to destroy or seriously damage the relationship of trust and confidence without any reasonable or proper cause.
The court also took the view that the judge’s assumption, that the fact of the doctor losing his registration to practice amounted to a repudiatory breach of contract, may well be wrong. It noted again that this was an interim measure imposed by a third party against the doctor’s will and prior to any final determination of culpability. Subsequent events were noted – criminal charges had not ultimately been brought in relation to either case, the Trust was proposing to proceed with only one of them at the forthcoming hearing and the doctor had always disputed the allegations. The court issued a “warning” that there must be a real risk that any future termination of the doctor’s contract on the basis of the interim suspension would amount to unlawful dismissal or breach of contract. However, it was not for the judge, or for the instant court to determine this by way of an application for a pre-emptive injunction.
Postponement of the hearing pending criminal investigation
The judge considered that the Trust had failed to engage with the doctor’s concerns, on the basis of privileged legal advice, about participating in an interview whilst the criminal investigation was ongoing and that this amounted to a breach of the implied term of trust and confidence.
The Court of Appeal disagreed. It considered that the principles to be derived from the case law were that an employer does not usually need to wait for the conclusion of criminal proceedings before considering whether to dismiss an employee or proceeding with a disciplinary hearing. The court would only intervene where there was a real danger rather than a notional risk of a miscarriage of justice in criminal proceedings. Moreover, the threshold for the court to interfere with the Trust’s management of its own employees was high and the case law emphasised that the court should not engage in micromanagement of employment procedures. Whilst the judge had discretion to grant the injunction, she had applied the wrong test. As above, she had wrongly equated the implied term of trust and confidence with a general duty to act fairly when it was a far more severe test. In re-exercising the discretion, the Court of Appeal held that in attempting to pursue its own disciplinary process the Trust could not be said to have taken action calculated to destroy or seriously damage the relationship of trust and confidence and there was good reason for it to wish to follow that process rather than await events in the criminal investigation.
The court also held that there was no evidence that proceeding with the disciplinary process, which it noted would be determined on the basis of a lower standard of proof, would have had any effect on the criminal investigation or given rise to a real danger of a miscarriage of justice. The doctor had already been interviewed by police and could have provided a copy of that statement to his employers, as he subsequently elected to do when the decision not to press criminal charges had been made. The fact that some privileged legal advice had been given not to participate could not be determinative of whether an injunction to prevent a disciplinary process continuing should be granted in every case. The countervailing consideration was the contractual obligation on the doctor to participate in disciplinary proceedings.
This judgment provides reassurance to healthcare professionals subject to interim suspension by their regulators on the basis of unproven allegations. Absent express provision in their contracts their employers should not usually be able to dock pay. Moreover, terminating employment on such grounds may well amount to a breach of contract or unlawful dismissal and the court’s warning to this effect will no doubt trouble employers considering such a course.
Nonetheless, the judgment provides little encouragement to those considering invoking the jurisdiction of the High Court in such cases given the Court of Appeal’s conclusion that the injunction should not have been granted and its emphasis upon the severe test for establishing a breach of the implied term of trust and confidence and the need to avoid micromanagement of employers’ disciplinary processes by the court.
Jeremy Hyam QC appeared for the Respondent. He did not contribute to this article.