Employment Eye - Alert: Court of Appeal case on overlapping MHPS process, GMC suspension and police investigation

Can an NHS organisation stop paying a doctor during an interim suspension from the GMC register?  Can it continue a disciplinary investigation despite an ongoing police investigation?  The Court of Appeal (“CA”) has just dealt with an appeal addressing these questions. Please click here for a full copy of the judgment in North West Anglia NHS Foundation Trust v Andrew Gregg.

Summary

NHS organisations often have to wrestle with the employment consequences of lengthy interim suspensions of doctors’ GMC registration.  Such suspensions explicitly do not terminate a doctor’s employment, but prevent the doctor from performing their duties.  So, must the doctor still continue to be paid whilst unable to work? 

This scenario often combines with the problematic requirements of the national Maintaining High Professional Standards (MHPS) policy for investigating serious concerns about doctors, and parallel police investigations.  MHPS unhelpfully suggests that employers’ investigations should not proceed where directly related to police investigations, despite the latter often taking months or years to conclude.  Can this be right?

In summary the CA ruled that:

• The default position is that a doctor should continue to be paid during a GMC suspension. A specific contractual ability for the employer to stop pay (or at least a custom and practice of doing so) or evidence that the doctor was “not ready and willing to work” (aside from the suspension) would be needed to do so.  No ability to stop pay applied in respect of Dr Gregg.
• The Trust did not need to wait for the conclusion of criminal proceedings before proceeding with internal disciplinary proceedings. A court should only intervene if the employee could show that the continuation of the internal proceedings gave rise to a real danger of a miscarriage of justice in the criminal proceedings.  That was not the case here.

On a less conclusive third issue, the CA also ruled that it was not “unfair” to invite Dr Gregg to a hearing to discuss the possibility of terminating his contract because of the GMC suspension.  However, no ruling was made on whether an actual termination would have been fair or contractually permissible.

Background

In 2016 and 2017 the Trust became concerned about the deaths of two patients in Dr Gregg’s care and started proceedings under its MHPS and disciplinary policies against him.  The police and GMC both also commenced investigations and the doctor was “excluded” (suspended from employment) by the Trust on full pay.  

From May 2017, pending the GMC’s investigations which had extended to consider other cases also involving Dr Gregg, the Medical Practitioners Tribunal Service suspended his GMC registration to practice.  As a result, the Trust decided to stop Dr Gregg’s pay for the duration of the GMC suspension.  When a review in April 2018 lifted the GMC suspension in favour of restricting Dr Gregg’s clinical practice, the Trust accepted that he should continue to be paid from that point, despite renewing his exclusion from employment.

In the meantime, Dr Gregg sought and successfully obtained in February 2018 an injunction from the High Court which:

1. required the Trust to reinstate the pay that had been withheld during his GMC suspension;
2. prevented the Trust continuing a disciplinary investigation until the police investigation was complete; and
3. prevented the Trust from inviting Dr Gregg to a hearing to consider the termination of his employment due to a breach a term of his consultants’ contract requiring him to “maintain a requisite qualification, registration or licence to practice” (i.e. because of his GMC suspension).

The Trust continued to dispute this decision, and appealed to the CA.

The CA decision on pay during GMC suspension

In respect of pay during a GMC suspension the CA found that the doctor’s contract did not allow for the stopping of pay in these circumstances.  Furthermore, nothing of this sort was included in the Trust’s MHPS or disciplinary policy nor was there any evidence of a custom or practice of stopping pay in similar situations.  As a result the CA decided to apply the following common law principles:

• if an employee did not work, they had to show that they were ready, willing and able to perform that work if they wished to avoid a deduction to their pay;
• if they were ready and willing to work, and the inability to work was the result of a third-party decision or external constraint, deduction of pay could be unlawful;
• an inability to work due to a lawful suspension imposed by way of sanction (i.e. not a neutral suspension pending investigations) might permit the lawful deduction of pay;
• an inability to work due to an "unavoidable impediment" or one which was involuntary might render the deduction of pay unlawful;
• where the employee was accused of a criminal offence, the issue could not be determined by reference to the employee's ultimate guilt or innocence, or by reference to whether they were granted bail.

Applying the above principles, Dr Gregg was ready and willing to work but his GMC registration had been suspended by a third party.  His contract did not address the issue of pay deduction during suspension, so the default position should be for there not to be any deduction.

The CA decision on proceeding to a hearing to consider dismissal because of the GMC suspension

The High Court had decided to prevent the Trust holding a hearing on the issue of whether it could terminate Dr Gregg’s employment for failing to “maintain a requisite qualification, registration or licence to practice” as he required by Schedule 19 of the national 2003 Consultants Contract.  However, the CA found the High Court’s reasoning on this decision to be confused.  The High Court seemed to have taken the view that the Trust could have terminated the employment contract for this reason, but that it was not “fair” to hold a hearing about this… (if you find that hard to reconcile, don’t worry, so did the CA!)

The CA, perhaps unsurprisingly therefore, disagreed with the High Court’s decision.  The Trust should not have been prevented from holding a hearing to consider termination because of the GMC suspension.  However, the CA also warned that “there must be a real risk that any future termination of Dr Gregg's contract because of the effect of the suspension on his licence/registration would subsequently be found to be either a breach of contract on the part of the Trust, or to constitute unfair dismissal” and did not rule on either issue.

The CA decision on the Trust investigating in parallel to a police investigation

The case of Chakrabarty v Ipswich Hospital NHS Trust [2014] had already determined that there is no restriction on Trusts proceeding with MHPS investigations in parallel to GMC proceedings.  However, in the present case, the High Court had prevented the Trust from proceeding in parallel to police investigations.

The CA disagreed with the High Court.  It found that the Trust did not need to wait for the conclusion of criminal proceedings before commencing internal disciplinary proceedings. The court should only intervene if the employee could show that the continuation of the internal proceedings gave rise to a real danger of a miscarriage of justice in the criminal proceedings.  As this did not appear to be the case, the CA found that the injunction had been wrongly granted.  The CA commented, “Why should the Trust, and those who fund it or use its services, wait for a separate organisation to conclude its separate enquiries, which might be months or years in the future?”.

The CA’s decision provides welcome guidance on the overlap between MHPS or disciplinary proceedings, GMC suspensions and police investigations.  Employers may not be surprised to hear that an employee’s pay cannot be stopped during a GMC suspension, in the absence of a contractual ability to do so.  However, employers will be pleased to hear that it is not always necessary to down tools for months or years during a criminal investigation.

These are issues which Bevan Brittan’s specialist healthcare employment lawyers advise on day to day.  They are also issues covered in depth as just part of our modular Medical Workforce Toolkit.  If you would like to discuss this topic, or any other aspect of the services we offer, please contact Alastair Currie or your usual Bevan Brittan contact.