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Disciplinary proceedings and police investigations

In most circumstances, disciplinary hearings do not need to be postponed if a police investigation is ongoing, as confirmed by the Court of Appeal’s recent decision in North West Anglia NHS Foundation Trust v Gregg (a case involving a doctor facing parallel disciplinary and police enquiries after the deaths of two patients).

Initially the High Court in this case granted an injunction to prevent disciplinary proceedings from continuing while the police investigation was ongoing, due to the risk of breaching the implied term of trust and confidence. The Court of Appeal, however, overturned this decision. Helpfully in doing so it set out three principles from case law which can be applied in disciplinary cases where criminal proceedings are also in progress:

  1. An employer considering dismissing an employee does not usually need to wait until the conclusion of criminal proceedings before doing so.
  2. Employers do not usually need to wait for the conclusion of criminal proceedings before commencing or continuing internal disciplinary proceedings.
  3. The court will usually only intervene if the employee can show the continuation of disciplinary proceedings will give rise to “a real danger” that there would be a miscarriage of justice in the criminal proceedings otherwise.

The court also clarified the scope of the term of trust and confidence in the conduct of disciplinary proceedings, holding that it is wrong to conflate it with a more general obligation to act fairly. Instead, it reiterated that the correct test is whether the conduct is “calculated to destroy or seriously damage the relationship” and whether there is “reasonable and proper cause” for that conduct.

It goes without saying that employers should act carefully in disciplinary proceedings where a police investigation is also in progress; however, this case provides some reassurance that they are not prevented from acting.

ACAS guidance on Neurodiversity

ACAS has published new guidance on Neurodiversity in the workplace. Neurodiversity refers to the different ways the brain can work and interpret information, and includes conditions such as Autism, ADHD, Dyslexia and Dyspraxia.

Sophia Coles has recently written about the importance of supporting people whose disabilities aren’t visible in her blog on Hidden Disabilities. The new ACAS guidance echoes this, highlighting why and how employers can change their workplaces to better support neurodiversity.

Disability discrimination – what is “long term”

Under the Equality Act, one of the criteria for determining if someone has a disability is if the effect of a physical or mental impairment is “long term”. This is defined as something that has lasted 12 months, is likely to last 12 months or is likely to last the rest of the life of the person affected.

In the recent case of Nissa v Waverly Education Foundation, the EAT has confirmed that in deciding if something is “likely” to last 12 months, the correct question is whether it “could well happen” (instead of adopting the higher threshold of “more probable than not”). The EAT also highlighted that, while the existence of a diagnosis of a particular condition is “evidentially relevant”, the absence of one is not necessarily determinative. This case sets a low threshold for determining if a condition is likely to be long term and is a reminder of the importance of taking a broad view of all the evidence available, particularly when it comes to future prognosis.

Government consultation on confidentiality clauses

We have written on a number of occasions about the changing nature of non-disclosure agreements (known as NDAs) and confidentiality clauses in settlement agreements (see here and here). In light of stories following #MeToo about the inappropriate use of such clauses to “gag” employees from speaking out about potentially criminal behaviour, they have come under increasing scrutiny by the press and regulators.

The government has now stepped in with a consultation on improving the regulation of confidentiality clauses. The consultation seeks view on whether further limitations should be put on confidentiality clauses to ensure that they cannot be misused in any way and/or to clarify what they can and cannot cover. For example, the government proposes to legislate that no confidentiality clause can prevent a person making any disclosure to the police.

The consultation remains open until 11.45pm on 29 April for anyone who wishes to comment.

April employment law changes

April has brought in a number of employment-related changes, including itemised payslips and an increase in various payments such as the national minimum wage and compensation limits. For a reminder of these, as well as advance warning of the changes to IR35 coming into effect in April 2020, see my recent blog.

If you require further information about anything covered in this briefing note, please contact Amy Wren, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2019

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