It is a practice of many employers to suspend employees who they suspect have committed an act of gross or serious misconduct.
However, many employers are unaware that by suspending an employee they may be exposing themselves to claims for constructive unfair dismissal.
The Courts and Tribunals have held on a number of occasions that employers who suspend employees as a “knee jerk reaction”, without proper consideration of all the circumstances, maybe committing a breach of the implied term of mutual trust and confidence in an employment contract. This is because the act of suspension quiet often causes reputational damage to an employee and may also cause such employees significant stress and anxiety. There have been cases where employees have brought successful claims against their employers for the personal injury they have suffered as a result of an inappropriate suspension.
A lot of the cases involving unlawful suspensions of employees have involved professionals such as teachers, doctors and those involved in social work. The potential repercussions of suspending such employees have been considered to be more serious.
The recent High Court decision in Ajoreyo v London Borough of Lambeth involved a teacher who was alleged to have used unreasonable force with two children. This type of allegation occurs relatively frequently in both the education and residential social work sectors. The High Court held that her suspension was unlawful because there had been no consideration given to alternatives to suspension and indeed the employee had not been asked for her response to the relevant allegations. The Court held that the suspension was a classic “knee jerk” reaction and indeed the Council’s own policies provided that suspension should not be used as a default position.
So, what should an employer do when considering whether to suspend an employee?
The main lessons to be learnt from the relevant case law are as follows:-
- Employers should not rush into a knee jerk reaction and indeed suspend employees as a “default position” when an employee is alleged to have committed acts of serious misconduct.
- It is important to consider whether there is good prima facia evidence that the employee has been involved in serious misconduct. A necessary and integral part of such consideration will be obtaining the employee’s initial comments to the allegation.
- Employers should carefully consider the allegations and whether suspension is necessary, either to enable a fair and unhindered investigation to take place or alternatively to protect an employer’s assets or children or adults who use the employer’s services.
- Employers should make careful notes of their decision making process before suspending.
- Alternatives to suspension should be considered, including moving an employee to another part of the employer’s business/undertaking or allowing the employee to work from home or reaching an agreement with the employee that they have an agreed period of paid absence, while any investigation is undertaken.
- The period of suspension should be kept under constant review as an unnecessarily long period of suspension can in itself be a breach of the implied term of mutual trust and confidence.
- It is essential that an employee’s pay and contractual benefits are maintained during any period of suspension.
Linder Myers has significant experience in advising employers on the suspension process and drafting relevant documentation, including letters of suspension, in appropriate circumstances.
We also have assisted many senior employees, including teachers, social workers, doctors, company directors and senior executives who have been suspended.
Find out more about our Employment department