Suspension of Employees – Still possible or a breach of trust and confidence

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Many employers will be familiar with the situation. Something untoward happens at work, the finger gets pointed, the employer needs to take action; in order to appear fair, ACAS say that an investigation needs to take place before a disciplinary. So you suspend the employee on full pay to ensure that a fair investigation can take place. The disciplinary is held days later, perhaps the week after. The employee is told that no decision has been made yet and will not be made until after the hearing.

Seems normal, right?

Well, in the case of Crawford v Suffolk Mental Health Partnership NHS Trust ([2012] EWCA Civ 138) Elias LJ said this:

“This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council [2000] IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him”

This case involved nurses tying a patient to a chair and a table – “the chair was secured to a dining room table by a sheet or two and that there was another sheet across his stomach”. I can’t imagine something more serious.

Elias’ comments are effectively that suspending employees in a knee jerk way would amount to breach of the implied term of trust and confidence, thus resulting in a potential constructive dismissal case.

I understand where Elias is coming from; any employees I’ve acted for who have been suspended have always said they have been made to feel like they are in the wrong already. People gossip and the taint of a disciplinary stays despite a cleared name.

But still, if I was acting for the employer (particularly in the example above) I would have suggested suspension, because if the allegations were found to be true, such misconduct could see the business closed down by the relevant authorities.

The point Elias was making was not to be knee jerked into suspension. So from now on, I think lawyers and employers need to think carefully (and perhaps even document reasons) about suspending an employee pending investigations. If tying a patient to a chair and table is not serious enough to justify it, what is? Would an allegation of theft be serious or does suspension imply guilt. What about, as Sean Jones QC said at recent Employment Law seminar, a teacher accused of paedophilia?

Difficult stuff, and I would welcome everyone’s views on suspension in the comments box below.

One thought on “Suspension of Employees – Still possible or a breach of trust and confidence

  1. The need to protect vulnerable patients was clearly paramount in this case, Steven. The employer could have moved the employee to non patient contact duties pending investigation rather than suspend, but the employee would then have had access to their colleagues and could have put pressure on them to change their witness accounts. Having worked in the NHS for many years, in my experience people are understandably very reluctant to support allegations against their colleagues. A full, fair and balanced investigation should be carried out sensitively and as quickly as possible with the aim of establishing the facts so that the investigator’s mind is open to both innocence and guilt. The effect on the employee cannot be underestimated, however, it’s extremely difficult for them and the employer has a duty to make sure they understand the reason for the suspension, that it does not confer guilt, and they are supported by their trade union, employee assistance programme or other means. Suspension does give the employee time to fully respond to serious allegations which they may not have had at work and they are unlikely to be able to perform effectively at work until the matter’s resolved, so suspension is in their interests in that respect. Provided an employment tribunal was satisfied that the employer had seriously considered other options before suspending, and had balanced the needs of the employee with the need to protect vulnerable patients and conduct a full and fair investigation, I don’t believe the employer would be penalised.

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