Inspired by real life HR cases and news articles, Senior Consultant Jim Hunt shares some little chunks of HR wisdom.

Employers can often get side swiped by external agencies that insist you’ll have to wait for their investigation to conclude before you can start yours. Not True.

If it were you, as their employer,  you could be faced with the prospect of keeping your employee on full pay suspension for months. In fact, the burden of proof for criminal law and employment law is not the same.

Police investigation looks to establishes whether a criminal offence has been committed.

Whereas an Employment investigation looks at whether the employee has breached workplace rules, policies, or their contract.These are separate processes with different standards of proof (criminal = beyond reasonable doubt; employment = balance of probabilities).

As Public Enemy famously rapped – “They even had it on the news, Don’t believe the hype”

The Court of Appeal’s decision in North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387 clarified that employers can usually continue internal disciplinary proceedings even while a police investigation is ongoing.

The case overturned a High Court injunction that had prevented the Trust from progressing with its disciplinary process. The Court of Appeal held that doing so would not normally breach the implied term of trust and confidence, unless the employee can show there is a real danger of prejudicing the criminal case.

Key facts:

• Concerns about Dr Gregg’s care led the Trust to suspend him on full pay and report him to the police.
• The GMC then suspended his registration, after which the Trust stopped his pay.
• Dr Gregg argued that the Trust should delay its disciplinary hearing until the police investigation ended, and initially secured an injunction.
• The Court of Appeal upheld that pay could not be withheld (since his inability to work arose from the GMC’s decision, not his own actions), but found the Trust was entitled to continue with its disciplinary process.

Implications for employers:

• Suspending without pay is only lawful if expressly allowed in the contract or in exceptional circumstances.
• Internal disciplinary processes can usually proceed in parallel with criminal proceedings, provided potential prejudice is considered carefully.
• Employees must show strong evidence of prejudice to stop an internal process, not just legal advice warning against participation.
• Employers need not delay their processes for lengthy criminal investigations, unless there is a genuine risk of miscarriage of justice.

In short: employers are free to progress internal procedures alongside criminal investigations, but cannot suspend without pay unless clearly permitted.

If you’re facing such a situation, where the police are involved, we know that this can add an additional layer of stress to deal with.  We can advise and support your management team through the investigation and disciplinary processes, whatever the circumstance.   Contact us to discuss your situation in confidence.