Disciplinary investigations – when can you suspend an employee?
If an employee has been accused of serious misconduct, an employer may wish to suspend the employee whilst an investigation is carried out. However, employers often forget that suspension should be a last resort and not a matter of course.
In this article we set out the circumstances in which you can suspend an employee and give practical tips for managing the suspension process.
When can you suspend?
It is likely to be appropriate to suspend an employee, if one of the following applies:
1. There is a potential threat to the business; for example, allegations of abuse of patients, children or elderly residents in a care home environment.
2. There is a potential threat to other employees; for example, allegations of bullying or harassment.
3. It is not possible to properly investigate if the employee remains in post, because there is a risk they may destroy evidence or influence witnesses.
4. Where there has been a breakdown in working relationships that is serious enough to justify suspension.
However, employers should assess each case on its own facts before deciding whether to suspend. If the decision to suspend is made, it must be made clear to the employee the reasons why and remember that they must be paid their salary for the full duration of any period of suspension.
First, check whether the employment contract gives you the right to suspend. If not and there is an implied right to work, then you could be in breach of contract if you suspend. An implied right to work might arise when an employee needs to maintain their public profile or is paid a shift premium or commission.
In some cases, there may be a criminal investigation into the matters of misconduct. It may not be fair to suspend an employee pending a criminal trial as this can take months or even years to conclude. Suspensions are meant to allow you to investigate matters quickly and unhindered.
Implied Terms – Mutual Trust and Confidence
As stated above, suspension should be a last resort. As such the courts have found that even if there is a contractual right to suspend, such right should be exercised reasonably.
Further, all contracts have implied into them mutual trust and confidence. You therefore must be satisfied you have reasonable grounds for the suspension or risk breaching this implied term.
In the recent case of Mayor and Burgesses of the London Borough of Lambeth v Agoreyo a teacher was suspended following allegations of physical force used on two children. The teacher resigned the next day and pursued a claim in the county court alleging the suspension was a breach of trust and confidence. The Court of Appeal held that the question was whether there was reasonable and proper cause for the suspension. They found in this case there was.
Conversely, the following are examples of where the court has found the suspension to be a knee-jerk reaction:
- Gogay v Hertfordshire County Council in which an employee was awarded damages for psychiatric injury as a result of a suspension following allegations of sexual abuse of which there was no prima facie evidence
- Crawford and another v Suffolk Mental Health Partnership NHS Trust where the Court of Appeal held that an NHS Trust had been wrong to suspend two long-standing nurses with no previous disciplinary record pending its investigation into allegations that they had tied a patient with dementia to a chair
The allegations in both the above cases were clearly serious and highlight the importance of considering all the circumstances before suspending an employee. It would be very hard to justify a suspension where there was no risk of harm to others or interference with evidence.
Employers should consider very carefully the objective reasons for issuing a suspension. Whilst it may feel uncomfortable having an employee at work during a disciplinary investigation, this is not the appropriate test. Only suspend if absolutely necessary. Inappropriate suspension could result in a claim before the employment tribunal for constructive dismissal.
When managing any suspension you should:
1. Inform the employee and clearly explain the reasons for the suspension;
2. Tell the employee what is expected of them during their suspension;
3. Ensure that the suspension is for as short a period as possible;
4. Keep it under review;
5. Provide the employee with a point of contact.
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Laura Pearce, Senior Solicitor