Gregg v North West Anglia NHS Foundation Trust

An employer breaches the implied term of mutual trust and confidence by refusing a short adjournment of disciplinary proceedings where the employee faces potentially prejudicial criminal proceedings, has been advised not to participate, and the employer has failed fairly to engage with those concerns. A contractual power to terminate for failure to hold registration cannot be used to replace an agreed disciplinary process with an alternative, nebulous process based on the same uninvestigated conduct. Where a statutory interim suspension prevents a doctor from working involuntarily, contractual provisions allowing pay to cease because the doctor is unavailable for work do not apply. Injunctive relief may be granted where there is a real risk of prejudice and the court’s intervention does not require it to micro-manage the disciplinary process.

Dr Gregg, a consultant anaesthetist, was investigated by his NHS employer, the police and the General Medical Council following concerns that he had inappropriately hastened the deaths of two patients. The Trust proposed continuing disciplinary investigations before the Crown Prosecution Service had decided whether to charge him. Dr Gregg sought an injunction postponing those proceedings. He also challenged the cessation of his salary after the Medical Practitioners Tribunal Service imposed an interim suspension of his registration. The Trust counterclaimed for a declaration that it could convene a hearing under Schedule 19 of the consultant terms and conditions to consider termination for failure to hold the requisite registration or licence. The issues concerned contractual incorporation, fair exercise of contractual powers, pay during involuntary suspension and the availability of injunctive and declaratory relief.

1. The reference in the Trust’s disciplinary policy to the initial handling of concerns incorporated Parts I and II of Maintaining High Professional Standards in the Modern NHS, including paragraph 25 of Part II, but did not incorporate paragraph 12 of Part III. The contractual wording and the historical context showed that Part III operated as advice for Foundation Trusts.

2. Nevertheless, the implied term of mutual trust and confidence required the Trust to act fairly and to exercise its contractual discretion rationally. The Trust had failed to engage with Dr Gregg’s specific concern that participation could prejudice his criminal defence. The proposed adjournment was limited to the CPS charging decision, and the Trust’s general assurances about expedition and confidentiality did not adequately address the risk of information being obtained by the police or GMC. The refusal to adjourn therefore breached the implied term. The approach in Lakshmi v Mid Cheshire Hospitals NHS Trust was materially applicable, while the general guidance in Harris v Courage (Eastern) Ltd did not justify proceeding without careful consideration of the particular circumstances.

3. Schedule 19 permitted termination on three months’ notice for failure to hold the requisite registration or licence. It did not, however, justify replacing the contractual disciplinary process with an alternative hearing focused ostensibly on registration failures when those failures arose from uninvestigated allegations of misconduct. The Trust could not switch processes because the agreed disciplinary route had become inconvenient. Declaratory relief on the counterclaim was refused.

4. Paragraph 25 of Part II MHPS was incorporated and gave the Trust a discretion to stop pay where the practitioner was no longer available for work. Read in context, that exception concerned voluntary conduct such as being abroad, taking leave or undertaking other work. An interim suspension imposed by the statutory regulator was involuntary. The Trust was therefore not entitled to stop Dr Gregg’s salary on that basis, and declaratory relief was granted.

5. The threshold for an injunction was high, but was met. The court did not need to micro-manage the disciplinary process. The combination of serious potential criminal consequences, legal advice against participation, limited protection from the Trust’s reassurance and the risk of compelled information-sharing created a sufficient risk of unfairness. The Trust was restrained from proceeding pending the CPS charging decision.

6. The Trust’s applications to admit fresh evidence and revisit the declaratory relief were dismissed. The new evidence did not materially affect the reasons for the judgment, and the court would not provide a running commentary on a revised course of action that had not been the case presented at trial.