North West Anglia NHS Foundation Trust v Dr Andrew Gregg
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Peter Jackson,Lord Justice Lewison |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] EWCA Civ 387 |
| Docket Number | Case No: A2/2018/0662 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2019 |
[2019] EWCA Civ 387
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Justine Thornton QC (sitting as a Deputy High Court Judge)
HQ17X04116
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Peter Jackson
and
Lord Justice Coulson
Case No: A2/2018/0662
Mr Mark Sutton QC & Ms Nadia Motraghi (instructed by Mills & Reeve LLP) for the Appellant
Mr Jeremy Hyam QC (instructed by RadcliffesLeBrasseur) for the Respondent
Hearing dates: Wednesday 20th & Thursday 21st February 2019
Approved Judgment
Introduction
This is an appeal by North West Anglia NHS Foundation Trust (“the Trust”) against the decision of Ms Justine Thornton QC, sitting as a Deputy High Court Judge (“the judge”), by which she found that the Trust was or would be in breach of contract:
a) for failing to pay Dr Gregg's salary during the period when he was the subject of an interim suspension;
b) for 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
c) for pursuing their own internal disciplinary process in parallel with an investigation by the police, rather than delaying it until the police investigation was completed and a decision made by the CPS as to whether or not to charge Dr Gregg with any criminal offences.
Permission to appeal was granted on 30 May 2018.
At the outset of the hearing, it was suggested on behalf of Dr Gregg that the appeal was academic as a result of the events (detailed in Section 3 below) which have occurred since the trial. However, whilst it is right that several of the issues between the parties have fallen away, there remain a number of disputes, not least those relating to costs. Furthermore, it was agreed that the points which have been raised about the rights and obligations of an employer and an employee in the NHS when the employee is the subject of an interim, non-terminatory suspension such that his or her licence or registration is automatically suspended, are of widespread application. For those reasons, the appeal was heard in full. The court was greatly assisted by the written and oral submissions of Mr Sutton QC and Ms Motraghi, on behalf of the Trust, and Mr Hyam QC, on behalf of Dr Gregg.
I propose to deal with the issues in this way. In Section 2, I set out the relevant terms of the contract between the Trust and Dr Gregg. In Section 3, I set out the relevant facts, including the events following the judgment. In Section 4, I deal with what I shall call Issue 1, namely whether Dr Gregg was entitled to be paid during the period of his interim suspension. In Section 5, I deal with Issue 2, namely whether the Trust was entitled, notwithstanding the internal investigation/disciplinary proceedings in respect of misconduct, to have a hearing with Dr Gregg to consider terminating his contract on the alternative basis that he did not hold the requisite registration. And in Section 6, I deal with Issue 3, namely whether the Trust was in breach of the implied term of trust and confidence by progressing their own internal disciplinary proceedings without waiting for the completion of the police investigation. There is a short summary of my conclusions at Section 7.
The Contract
The contract of employment between the Trust and Dr Gregg was dated 15 January 2007 (“the contract”). There are four relevant parts: the contract of employment itself; the terms and conditions; Parts I and II of the Department of Health's document entitled ‘Maintaining High Professional Standards in the Modern NHS’ (“MHPS”); and the Trust's own Disciplinary Policy. I summarise the relevant parts of each in turn.
The Contract of Employment
Clause 3 provided:
“ 3 General Mutual Obligations
Whilst it is necessary to set out formal employment arrangements in this contract, we also recognise that you are a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgements and decisions. It is essential therefore that you and we work in a spirit of mutual trust and confidence. You and we agree to the following mutual obligations in order to achieve the best for patients and to ensure the efficient running of the service:
• to co-operate with each other;
• to maintain goodwill;
• to carry out our respective obligations in accordance with appraisal arrangements;
• to carry out our respective obligations in devising, reviewing, revising and following the organisation's policies, objectives, rules, working practices and protocols.”
Clause 10 provided:
“ 10 Registration Requirements
It is a condition of your employment that you are, and remain, a fully registered medical practitioner and are included on the Specialist Register held by the General Medical Council (GMC), and continue to hold a licence to practice.”
Clause 12 provided:
“ 12 Deductions From Pay
We will not make deductions from or variations to your salary other than those required by law without your express written consent.”
Clause 17 provided:
“ 17 Disciplinary Matters
Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of Trust Policies, or that your professional competence has been called into question, we will resolve the matter through our disciplinary or capability procedures, subject to the appeal arrangements set out in those procedures.”
Clause 32 provided:
TERMINATION OF EMPLOYMENT
32 Provisions governing termination of employment are set out in Schedule 19 of the Terms and Conditions.”
Clause 20 stated that Dr Gregg's basic salary was £66,065.00. Although the contract did not expressly say so, it was agreed that this was an annual amount. It was payable monthly.
The Terms and Conditions
For the purposes of the appeal, the only part of the Terms and Conditions to which the court was taken was Schedule 19, entitled “Termination of Employment”.
The relevant parts of Schedule 19 were as follows:
“ Period of Notice
1. Where termination of employment is necessary, an employing organisation will give a consultant three months notice, in writing.
2. Consultants are required to give their employing organisation three months written notice if they wish to terminate their employment.
3. Shorter or longer notice may apply where agreed between both parties in writing and signed by both.
Grounds for Termination of Employment
4. A consultant's employment may be terminated for the following reasons:
• Conduct;
• Capability;
• Redundancy;
• Failure to hold or maintain a requisite qualification, registration or licence to practice;
• In order to comply with statute or other statutory regulations;
• Where there is some other substantial reason to do so in a particular case.
5. Should the application of any disciplinary or capability procedures result in the decision to terminate a consultant's contract of employment, he or she will be entitled to an appeal…”
It is the first and fourth bullet points which are relevant to this appeal.
MHPS (Parts I and II)
For the reasons explained in her judgment at [100] – [103], the judge found that Parts I and II of MHPS were incorporated into the contract but that Parts III — V were not. There is no appeal against that finding.
Part II is entitled ‘Restriction of Practice and Exclusion of Work’. In the Introduction section, under the heading ‘Managing the Risk to Patients’, there were the following paragraphs:
“4. When serious concerns are raised about a practitioner, the employer must urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace…
5. Exclusion of clinical staff from the workplace is a temporary expedient. Under this framework, this exclusion is a precautionary measure and not a disciplinary sanction. Exclusion from work (“suspension”) should be reserved for only the most exceptional circumstances.” (Emphasis added)
There is then a lengthy section, from paragraphs 9 to 31 inclusive, under the heading ‘The Exclusion Process’. Under the heading ‘Keeping in Contact and Availability for Work’, paragraph 25 provided:
“25. An exclusion under this framework should usually be on full pay, the practitioner must remain available for work with their employer during their normal contracted hours. The practitioner must inform the case manager of any other organisation(s) with whom they undertake either voluntary or paid work and seek their case manager's consent to continuing to undertake such work or to take annual leave or study leave. The practitioner should be reminded of these contractual obligations but would be given 24 hours' notice to return to work. In exceptional circumstances, the case manager may decide that payment is not justified because the practitioner is no longer available for work (e.g. abroad without agreement).” (Emphasis added)
Part III (which as already noted, the judge found was not incorporated into the contract), deals with the conduct of hearings and disciplinary matters, including the situation where investigations identified possible criminal acts.
The Trust's Disciplinary Policy
This document was generally incorporated into the contract by the reference to it in Clause 17 (paragraph 5.4 above). Section 5 was headed ‘Duties and Responsibilities’.
Dr Gregg's express obligation, relevant to the...
To continue reading
Request your trial
-
Appeal By Paul Donnelly Against South Lanarkshire Council
...between the parties such as to amount to a material breach of contract (North West Anglia NHS Foundation Trust v Dr Andrew Gregg [2019] EWCA Civ 387). [36] There had been no material change of circumstances. The appellant sought interim interdict in July 2019 to allow him to proceed with hi......
-
Mr Emad Aldin Smo v Hywel DDA University Health Board
...51 My attention was drawn to the relatively recent decision of the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ. 387. In my view, that decision does not affect the highly conditional view I have expressed in the previous paragraph of this judgment: in G......
-
Mr S Putman v Onriver (UK) Ltd and Mr Z Cheng: 2201569/2021
...this 22 Case Number: 2201569/2021 passage from Lord Justice Coulson's judgment in the North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387 case makes ''I consider that the starting point for any analysis of [whether the employer is entitled to withhold pay] must be the contrac......
-
Mr G Fuller v Lancashire County Council: 2414517/2021
...further period as the tribunal considers reasonable. Payments during “suspension” 77. In Gregg v North West Anglia NHS Foundation Trust 2019 ICR 1279, the Court of Appeal offered guidance on pay during disciplinary suspension in relation to employees. In the absence of any contractual right......
-
Employment Law Review And Update On Key Legal Issues
...the employee. Suspension pending investigation - the safest way is to pay: North West Anglia NHS Foundation Trust v Dr Andrew Gregg (2019) EWCA Civ 387 The Court of Appeal held that the NHS Trust was not entitled to withhold Dr Gregg's pay during a period of interim suspension by a professi......
-
Is It Still Viable To Run An Internal Disciplinary Process Alongside Criminal Proceedings?
...Court of Appeal's decision in the case of North West Anglia NHS Foundation Trust v. Gregg [2019] EWCA Civ 387 brings some welcome reassurance to employers that it remains viable to run internal disciplinary processes alongside criminal proceedings. Only in very limited circumstances is ther......
-
U.K. Employment Law Update: Disciplinary Proceedings, Compensation on an Unfair Dismissal and Religious Discrimination
...Proceedings Have to Wait Until a Criminal Investigation Is Completed? In North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, the Court of Appeal considered whether conducting disciplinary proceedings during an ongoing criminal investigation was a breach of the term of mutual......