Important considerations when suspending an employee
I advise both employer and employees about employment law and HR and one of the most frustrating things I experience when advising employee customer’s is the employer who suspends without any thought or consideration for the employee or the law. Consequently, it is something that I talk about a lot, and I actively encourage my employer customers to use suspension sparingly and for as little time as possible.
There is of course the legal position to follow and potential ramifications for not doing so, but the main issue is the impact that suspension has on an employee including:
- Impact on the employee’s reputation – there is usually an assumption of ‘guilt’ on the part of colleagues, customers and third parties if someone is suspended;
- Impact on an employee’s confidence – being away from work for an extended period has a significant impact on confidence;
- Strain on personal relationships at home – inevitably it impacts on the whole family as the employee is out of routine and at home, so everyone (even children) know that something is not right;
- Impact on mental health from mild stress and anxiety, to severe depression and anxiety – the impact on an employee’s mental health of suspension and particularly a prolonged suspension cannot be understated.
I have seen first-hand the significant damage to an employee that can be caused by a lengthy and unnecessary suspension from work.
NHS Trusts, in particular, are notorious for their unnecessary use of suspension and extreme lengths of time an employee remains on suspension in disciplinary processes, and this was certainly the case in a recent case decided by the High Court against the Barking, Havering and Redbridge University Hospitals NHS Trust (NHS Trust).
The Law & Guidance
There are certain terms that are implied (i.e. not written in a contract form part of the terms) in any employer/employee relationship and these include:
- The employer will not, without reasonable and proper cause act in a manner that would destroy or seriously damage the relationship of trust and confidence between the employer and employee;
- Any decision to suspend an employee from their normal duties should not be exercised on unreasonable grounds.
Suspension without reasonable grounds may amount to a breach of the implied term of trust and confidence.
Also relevant to this case is a letter sent to all NHS Trusts in May 2019 by Baroness Harding, Chair of NHS Improvement. The letter was sent following the death of an employee at a London NHS Trust who had committed suicide after having been dismissed without notice.
Relevant paragraphs from the letter were referred to in the Judgement in this case, as follows:
(i) Paragraph 5 – Decisions relating to the implementation of suspensions/exclusions
“Any decision to suspend/exclude an individual should not be taken by one person alone, or by anyone who has an identified or perceived conflict of interest. Except where immediate safety or security issues prevail, any decision to suspend/exclude should be a measure of last resort that is proportionate, timebound and only applied when there is full justification for doing so. The continued suspension/exclusion of any individual should be subject to appropriate senior-level oversight and sanction.”
(ii) Paragraph 6 – Safeguarding people’s health and wellbeing
“(a) Concern for the health and welfare of people involved in investigation and disciplinary procedures should be paramount…
(b) A communication plan should be established with people who are the subject of an investigation or disciplinary procedure, with the plan forming part of the associated terms of reference. The underlying principle should be that all communication, in whatever form it takes, is timely; comprehensive; unambiguous; sensitive; and compassionate. …”
Ms Harrison is a Solicitor and was employed by the NHS Trust as Deputy Head of Legal Service. Her job role included 60% inquest work, advising and defending the NHS Trust at inquests; 35% managing clinical negligence and personal injury claims and 5% in an advisory capacity.
On the 9th August 2019 Ms Harrison was diagnosed with stress and prescribed anti-depressant medication – not having previously been affected by mental health issues.
On the 2nd October 2019 Ms Harrison wrote to her employer to inform them that she had received no update on her suspension and that her suspension was having a detrimental effect on her health. This was supported by the Occupational Health Doctor who saw Ms Harrison on the 8th October 2019 and who stated that her symptoms would settle once the dispute was resolved.
After various correspondence between the parties, Ms Harrison returned to work on the 5th November 2019, and several conditions were placed on her, including attending mandatory training and a further Occupational Health appointment.
On the 12th November 2019 a meeting took place between Ms Harrison and the Director of Nursing, Mr Avery. In the meeting he informed Ms Harrison that she could return to work on restricted duties on a phased return. He told her that she had to undertake audit files but could not work from the legal office.
Ms Harrison objected to this on the basis that she considered it to be a demotion and was contrary to advice from the occupational health doctor. As a result, the Employer informed Ms Harrison that she had failed to follow a management instruction and suspended her again, with security then escorting her from the premises.
On the 26th November 2019 Ms Harrison applied to the High Court for an interim mandatory injunction permitting her to undertake the majority of her normal work duties with an agreement not to undertake the work which was the subject of the investigation.
The High Court agreed with Ms Harrison and granted an interim injunction permitting her to return to work and undertake the majority of her normal duties.
In the Judgement the key reasons for deciding in Ms Harrisons favour were:
- That the decision of the Trust to suspend was not a proportionate response to the risk alleged by the Trust;
- The Trust, whilst claiming they had considered alternatives to suspension, had not identified any alternatives and their ‘broad-brush’ approach to the issue was flawed;
- There was not reasonable or proper cause to suspend her from all of her duties;
- The decisions to suspend did not follow the NHS Improvement Guidance as ‘they were not proportionate, were not fully justified and there is no evidence that Ms Harrison’s health and welfare was of paramount importance’.
There was clear evidence that excluding Ms Harrison from work had caused significant personal upset and was professionally detrimental, and this was considered in light of the fact that there was no evidence to indicate that harm would be caused to the Trust by allowing her to resume her normal duties.
Points to Note
This is an interesting case as the Court clearly took into consideration the impact on the employee of the suspension verses the risk of harm to the employer.
Probably the most frustrating thing about this whole case is that it is tax-payers money that has been wasted by poor HR practices, poor management of the issue and litigation of a case that should never have been necessary. This is of course money that could have been used to fund treatment and care of those in need!
If you are considering suspending an employee then I strongly recommend that you seek advice before doing so, and if you do suspend an employee you ensure that it is for a limited period only whilst there is a risk to the business or organisation.
Don’t forget getting advice from a Solicitor does not have to be complicated or costly!
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