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The pitfalls of suspending employees

A suspended employee may claim constructive (and potentially unfair) dismissal by arguing that the suspension is not justified, is a breach of contract or has gone on too long

The Acas Code of practice on disciplinary and grievance procedures notes that suspension should not be an automatic response. Suspension should only be considered if there is both a serious allegation of misconduct and working relationships have severely broken down; the employee could tamper with evidence, influence witnesses and/or sway the investigation; there is a risk to other employees, property or customers; or the employee is the subject of criminal proceedings that may affect whether they can do their job.

The Acas guidance recommends that suspension should be as brief as possible, that its continuation should be kept under review, and that it should be made clear suspension is not considered to be a disciplinary action.

Does suspension breach trust and confidence?

In Mayor and Burgesses of the London Borough of Lambeth v Agoreyo, in the context of allegations of inappropriate behaviour towards children, Agoreyo argued that her suspension was a breach of the implied duty to maintain mutual trust and confidence. The County Court disagreed on the basis that the employer “clearly had reasonable and proper cause to suspend” and that the employer had “an overriding duty to protect the children pending a full investigation… [t]hat could only be achieved by the suspension… until the allegations were fully investigated”.

The High Court allowed an appeal on the basis that suspension had been adopted “as the default position and as largely a knee-jerk reaction”. However, the Court of Appeal concluded that the High Court had applied the wrong test – the proper test was whether there was 'reasonable and proper cause' for the suspension. The County Court’s finding that there had been reasonable and proper cause for the suspension should therefore be upheld.

Impugning the reason for suspension and delay

In Uwalaka v Southern Health Foundation NHS Trust an allegation of misconduct was made against Uwalaka by a patient, whereupon he was suspended by his employer. The employment tribunal (ET) dismissed Uwalaka’s claims on the basis that the suspension and refusal to lift the restriction were not as a result of the protected disclosures he had made and did not constitute race discrimination. He had been suspended because of the concerns that had been raised by the patient. The employment appeal tribunal (EAT) rejected an appeal.

However, the ET and EAT were both critical of Uwalaka’s treatment as no steps had been taken by the time of the ET hearing to investigate or lift the suspension, which by that point had been in place for almost three years. The ET expressed the hope that the relevant management would be made aware of its judgement and undergo training on how to conduct an investigation in a timely manner and how to prepare a report that deals with serious allegations.

Handling the process

The key issues that employers therefore need to bear in mind are:

  • Recording the rationale for the suspension to demonstrate if necessary that the employer has considered the justification for the suspension carefully and satisfied itself that it has reasonable and proper cause for suspending the employee. Possible other options – such as change of team, workplace or hours – and why they were not considered appropriate, should be noted.
  • Keeping any suspension under review, and communicating with the employee regularly to update them as to progress with any investigation that is being conducted and how much longer it is likely to last.
  • Ensuring that the employee is able to contact someone in the employer’s organisation to discuss any concerns they may have.
  • Keeping the suspension confidential to the extent that this is possible.
  • Ensuring that the suspension only lasts for as long as can be justified in the circumstances.

Neutral act ?

In Agereyo the High Court disagreed with the statement in the employer’s suspension letter that suspension was a 'neutral act'. However, the Court of Appeal considered that whether or not this was the case was unlikely to assist in resolving the crucial question: whether there was reasonable and proper cause for the suspension in the particular circumstances. That, and the surrounding process issues, are what employers need to focus on.

Charles Wynn-Evans is a partner and Jennifer Hill is an associate at Dechert