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Can an Employer Withhold Pay When an Employee Is Prevented From Working?

on Friday, 05 April 2019.

In the case of North West Anglia NHS Foundation Trust v Gregg, the Court of Appeal looked at whether an employer could withhold an employee's pay at a time when he was prevented from working by the actions of a third party.

It also looked at whether the employer could proceed with a disciplinary procedure whilst a police investigation was ongoing.

Facts

Dr Gregg was a consultant anaesthetist working for North West Anglia NHS Foundation Trust (the Trust). The Trust initiated disciplinary proceedings against Dr Gregg after the deaths of two patients in his care. The police were also notified and commenced an investigation. Bail conditions were imposed which prohibited Dr Gregg from attending the Trust's premises.

The Interim Orders Tribunal (IOT) of the General Medical Council then wrote to Dr Gregg to inform him that it was imposing an interim order suspending his registration to practice as a doctor. The Trust then revoked its suspension of Dr Gregg on the basis that it was no longer necessary because he could not carry out work for the Trust as his registration had been suspended.

The Trust also decided to suspend payment of Dr Gregg's salary because:

  • he could no longer comply with a condition in his contract of employment which required him to remain a fully registered medical practitioner
  • the bail conditions prevented him from attending the Trust's premises to perform his duties
  • he was not therefore able or available to discharge his contracted role
  • he was not able to perform the work required by his contract of employment

The Trust continued with its disciplinary process. Dr Gregg applied for an injunction in the High Court seeking a cessation to the disciplinary procedure and the non-payment of his salary. The injunction was granted.

The IOT then lifted its suspension of Dr Gregg's registration (but continued to prevent him from having clinical contact with patient). The Trust re-instated its suspension of Dr Gregg on full pay, but did not pay him for the period in which his salary had been suspended.

The police subsequently decided that it would take no further action against Dr Gregg, and no charges would be brought.

The Trust appealed against the decision of the High Court to grant the injunction.

Progressing an Internal Disciplinary Procedure During a Criminal Investigation

The High Court granted the injunction on the basis that it was a breach of the implied term of trust and confidence to continue with the disciplinary procedure whilst the criminal investigation was ongoing.

The Court of Appeal decided that the judge had applied the wrong test and had not asked whether the conduct of the employer was calculated or likely to destroy or seriously damage the relationship of trust and confidence. It held that an employer did not have to wait until criminal proceedings had been concluded before carrying out an internal disciplinary process.

Was There an Entitlement to Pay?

The Court of Appeal looked firstly at the contractual wording and then considered the common law principle of whether Dr Gregg was "ready, willing and able'" to work.

With regard to the contractual position the question is whether the contract permits the employer to deduct pay. If the answer is no, the next question is whether the deduction of pay is in accordance with custom and practice. If the answer to both is no, then the common law position of whether the employee is "ready, willing and able to work" must be considered.

In this case there was neither an express nor implied term of the contract which permitted the deduction of pay.

With regard to being ready, willing and able to work the Court of Appeal held that the decisions of third parties, being the police in imposing bail conditions and the IOT in issuing the interim order suspending Dr Gregg's registration, did not mean that he was unable to work. The imposition of the interim order and the bail conditions should not automatically have resulted in a conclusion that he was not ready, willing or able to work. The Court commented that such a conclusion was "uncomfortably close to an assumption of guilt" at a time when no decisions had been taken about guilt. This is particularly the case where the individual intends to challenge the circumstances giving rise to the allegations. 

The Court of Appeal therefore held that where the contract does not permit the deduction of pay the default position during a suspension or period in which an employee cannot work should not be the deduction of pay. Exceptional circumstances may however justify such a deduction.

Comment

The law permits employers to carry out an internal disciplinary procedure in parallel to an ongoing criminal investigation or prosecution. However, employers may find that they are requested not to do so by the police so as to avoid prejudicing any future criminal trial, even where the allegations which would be considered are different to those that form the basis of the criminal prosecution.

With regard to pay, employers may wish to review whether their contractual documentation permits a cessation of pay during a suspension or other period when an employee is prevented from working, and consider whether change to the contract of employment is necessary.


For more information, please contact Richard Hewitt in our Employment Law team on 0117 314 5320.

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