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Doctor Entitled To Receive Salary During Interim Suspension

The new Judgment of North West Anglia NHS Foundation Trust v Dr Andrew Gregg may be of significant assistance to registrants who find themselves interim suspended by their regulatory body during a fitness to practise investigation.

The Judgment deals with a number of employment-related disputes between Dr Gregg and his employing NHS Trust. The most relevant segment from my perspective as a professional discipline specialist is the Court’s consideration of whether a doctor who has been interim suspended from the medical register by the General Medical Council/Medical Practitioners Tribunal Service is entitled to continue receiving his salary.

In Dr Gregg’s case, following the imposition of an interim order of suspension, his NHS Trust wrote to him stating that the Trust had decided to withhold his salary. The Trust’s correspondence to Dr Gregg stated “It is a condition of your contract of employment with the Trust that you are, and remain, a fully registered medical practitioner, are included on the specialist register held by the General Medical Council, and that you continue to hold a licence to practise. The effect of your interim suspension…clearly prevents you from complying with this fundamental contractual obligation…The consequence is that you are not currently able, or available, to discharge your contracted role…The Trust considers that this matter falls within circumstances…where payment is not justified because a practitioner is no longer available for work. In addition, under common law principles an employee’s contractual entitlement to pay is contingent upon their being ready, willing and able to perform the work they are employed to undertake. In all the circumstances set out above you are not able to perform the work required by your contract of employment”.

When considering whether the Trust was entitled to take this action, the Court noted that an interim order of suspension is “on any view, quite different from a suspension imposed by way of sanction” and found that the Trust was not entitled to withhold Dr Gregg’s salary during the period of his interim suspension.

In particular (and this may be of particular assistance to other professionals subject to interim orders), the Court made clear that it considered Dr Gregg’s unavailability for work during his interim suspension “manifestly not self-induced”. The Court rejected the Trust’s contention that Dr Gregg had failed to make himself “ready, willing and able to perform the work [he was] employed to undertake”. The Court further held that there was nothing in Dr Gregg’s contract of employment which permitted the withholding of his salary during an interim suspension. The Court went on to say that “in a situation where the contract does not address the issue of pay deduction during suspension, the default position should be that, in the ordinary case, an interim, non-terminatory suspension should not attract the deduction of pay. There may be exceptional circumstances (such as a complete or part admission of guilt) which might justify such a deduction, but they would not ordinarily arise“.

Here’s a link to the full Judgment for further reading –
https://www.bailii.org/ew/cases/EWCA/Civ/2019/387.html

Please don’t hesitate to get in touch should you need any assistance in relation to an interim order, fitness to practise investigation or MHPS proceedings.

Published inDoctorsGMCProfessional Discipline