Don’t jump into suspension too readily

Posted 16/10/2012

One recent Court of Appeal case acts as a good reminder to employers not to suspend employees just as a matter of course, but to take a step back and determine whether suspension is really necessary. An unjustified suspension may constitute a breach of the implied term of trust and confidence that exists between all employers and employees.

Lord Justice Elias, who is a former President of the Employment Appeal Tribunal, added a footnote to his judgment on Crawford v Suffolk Mental Health Partnership NHS Trust, reminding employers not to suspend an employee as a knee jerk reaction.

In this case, two employees were suspended pending investigation into allegations that they restrained a patient suffering from dementia using inappropriate methods. The two employees were both nurses of more than 20 years service, each with a previously unblemished record. Whilst the allegation was serious, Elias LJ noted that: “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 the complaint is made, and quite irrespective of the likelihood of the complaint being established.”

He commented that although such complaints will always need to be investigated, it does not mean that suspension is always justified. If this step is taken either without being permitted under a contractual provision or employer’s policy or (even when a policy or contractual power exists) where it cannot be shown that it was necessary to suspend the employee, then this may constitute a breach of the duty of trust and confidence. This would mean that the employee would be entitled to resign in response, and claim constructive dismissal.

Totally excluding employees from work and forbidding them from contacting their work friends can leave employees feeling “belittled and demoralised”, which Elias LJ suggests “can be psychologically damaging”. With the best will in the world, suspension is likely to lead to assumptions that there is no smoke without fire and even if an employee is subsequently cleared of all charges, it may be virtually impossible for them to ever fully reintegrate.

Rather than automatically jumping to suspension, thought should be given to the seriousness of the allegations, the likelihood of any such conduct being repeated, the records of the employees involved and the overall future risk to both employee and employer of keeping the employee at work. Employers faced with such issues should always seek advice to minimise the risk of the suspension being called into question.