Suspension advice for employers

Disciplinary suspension advice

On hearing of an alleged incident of serious misconduct it is common for employers to have a ‘knee jerk reaction’ and impose a precautionary suspension for the duration of a disciplinary investigation.

The Director or Manager may feel confident in the quick decision they have made, believing that the serious nature of the allegations easily justifies their decision, without the need for further deliberation. Furthermore, it may be the case that the individual’s contract of employment includes the right to suspend, adding to their sense of security in their decision.

Whilst it is understandable that an employer may arrive at this conclusion, case law has taught us that this mindset could have significant legal consequences.

Regardless of whether the allegations are serious, or the right to suspend is expressly included in the contract, employers need to pause to consider whether suspension is the right thing to do or if it can be avoided.

If not, there may be a breach of the implied term of mutual trust and confidence, entitling the employee to resign and claim damages for breach of contract or constructive unfair dismissal.  

Case law example

Mayor and Burgesses of the London Borough of Lambeth v Agoreyo [2019]

This case relates to a Teacher who was alleged to have used physical force on two pupils and is an example of a ‘knee-jerk’ suspension where the employer failed to adequately consider whether suspension could be avoided.

Ms Agoreyo resigned on the day of her suspension and made a claim in the County Court for damages for breach of contract. Her claim at the County Court was not successful and she appealed to the High Court.

The High Court found that suspension had been adopted as the “default position” and in the circumstances breached the implied term of mutual trust and confidence in the employment relationship.

This case reinforces that even (or especially) in cases where the conduct concerned is extremely serious, the employer must carefully and pro-actively consider what the true purpose of a suspension would be and whether there might be an alternative.

It is also important to note that including a statement in the suspension letter that suspension is ‘a neutral act and not a disciplinary sanction’, a phrase commonly used by employers when suspending and utilised by the Employers in this case, is not a waiver of the need for there to be reasonable and proper cause for the suspension.

When suspension may be appropriate

As is highlighted by this case, employers should consider each situation carefully before deciding whether to suspend someone.

The decision to suspend should only be made in exceptional circumstances, when there is genuine reason to believe it is necessary to protect one or more of the following:

•       The investigation (e.g. if you have valid concerns about an employee damaging evidence or influencing witnesses)

•       The business (e.g. if there is a risk to customer, property of business interests)

•       Other employees (e.g. where relationships at work have broken down)

•       The person under investigation

Even within these parameters, it is important for employers to challenge their justification for suspension. For example, has the individual exhibited behaviours that align with risks identified, being careful not to make unfounded assumptions.

All considerations in relation to suspension should be carefully documented as it may be required in evidence in future proceedings.

Alternatives to suspension

As has been identified, an employer should only suspend if there are no reasonable alternatives.

Examples of ways to handle the situation without suspending provided by ACAS include arranging for the individual to temporarily:

•       change shifts

•       work in a different part of the organisation

•       work from home

•       work from a different office or site

•       stop doing part of their job

•       work with different customers or away from customers

•       stop using a specific system or tool

The reason for any temporary change to working arrangements should be kept confidential wherever possible.

ACAS Guidance and Code of Practice

ACAS has published guidance to advise employers on how to consider and handle staff suspensions at work, specifically during investigations. The guidance covers deciding whether to suspend someone, the process for suspending someone, supporting an employee’s mental health during suspension and pay and holiday during suspension.

Additionally, the ACAS Code of Practice on disciplinary and grievance procedures provides helpful guidance on suspension, explaining that any period of suspension should be brief, kept under review and not used as a disciplinary sanction. Although this is just guidance, unreasonable failure to follow it could result in an increase of up to 25 per cent in any compensation awarded if an employee pursues a claim.

Code of Practice on disciplinary and grievance procedures | Acas

How can we help?

It is helpful for employer to have a ‘suspension checklist’ to work through to assist them in making, checking, and reviewing suspension decisions, which also has the benefit of capturing a written record of considerations.

You can download a copy of our free suspension checklist for employers on our website here: https://realemploymentlawadvice.co.uk/diy-documents/

For specific advice and guidance in relation to suspension please do not hesitate to contact us via email: Kathy@realemploymentlawadvice.co.uk or phone 01983 897003.

Case Name: Agoreyo v London Borough of Lambeth – High Court