Should you suspend an employee during a disciplinary investigation? When faced with a disciplinary complaint against an employee, an employer’s first reaction is often to take what may be perceived as the safe approach and suspend the employee until an investigation has been carried out. However, this may not be the fairest way to proceed.
Suspension would be appropriate if the allegations against the employee involve gross misconduct, where if they were upheld, the employer would be entitled to dismiss the employee without notice. Also, an employer would be justified in suspending an employee where there has been a breakdown in the relationship between the employee and employer, and the employer has lost trust in the employee.
The risks involved in automatically suspending employees subject to disciplinary proceedings as a “knee-jerk reaction”, without giving sufficient thought to the matter, have been highlighted in a recent Court of Appeal case – Lambeth B C v Agoreyo. In that case a teacher was suspended following several alleged incidents with children in her class. She resigned the same day and the Court of Appeal overturned the High Court’s decision to find that there was no breach of the implied term of mutual trust and confidence.
Suspending an employee will not automatically give rise to a claim, and the case clarifies the test that employers should apply when deciding to suspend. The Court of Appeal confirmed that an employee can only be suspended lawfully where there is “reasonable and proper cause” to do so. The CA went on to emphasise that suspension must be assessed on a case by case basis: it is a highly fact-sensitive question as to whether an employer has reasonable and proper cause to suspend.
The Court’s decision certainly should not be read as permitting a “suspend first and ask questions later” approach to workplace investigations, and suspension should not be a default response to misconduct allegations against an employee. A careful balancing act should be conducted, considering the needs of the investigation (such as independence) and the interests of the employee.
For example, employers should consider:
What initial evidence is available in relation to the allegations?
Is the suspension necessary?
Is there another, less extreme way of achieving the same objective?
What effect might the suspension have on the employee?
An employer that has considered all the above is less likely to be at risk of allegations of having made a knee-jerk reaction, and breached trust and confidence in their employment relationships. If suspension is unlawful, it can give rise to a constructive dismissal if the employee resigns and can also make the employer liable for any psychiatric harm which arises from the suspension. The Courts recognise that being suspended from work can have a severe reputational and psychological impact on an employee.
Our thanks to Backhouse Jones for this story. For all related enquiries, please contact their employment team via email@example.com / 01254 828 300