Suspension During Disciplinary

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Suspension During Disciplinary

Most employers will have some kind of disciplinary policy and procedure, which will provide and enable for an employee to be suspended on full pay whilst a disciplinary investigation against them is underway.

The disciplinary procedure and subsequent letter to the employee will usually say that suspension is not a disciplinary action, it is “a neutral act’ and is to allow the company to carry out the necessary investigations and sometimes its there to protect the individual being investigated.

It most cases, suspending an employee will be the most appropriate and the best course of action to take. However, suspending an employee is a serious step to take and considerable care should be taken with this kind of action. Do it badly or inappropriately and you could just be caught by a constructive dismissal, discrimination or a stress claim, or even an injunction especially if you allow it to drag on unreasonably.

What does it mean to suspend an employee?

There are in effect two main ways to suspend an employee:

I will just be concentrating on the later, suspension as part of a disciplinary process whilst the disciplinary investigation to be carried out.

Suspension will mean that the employee will be sent home and not allowed to entre their place of work or engaged in any work at all, such as working from home. It will also mean that the employee will not be allow to have any contact with any work colleagues or customers during that period without express permission.

When is suspension appropriate?

Employers should consider suspending an employee only where the alleged misconduct is of a serious nature or of a gross misconduct nature and when it fits into one of the following categories.

  • There is a potential threat to property and/or other employees

  • It is impossible to properly investigate the allegations whilst the employee remains at work

  • There is a risk that the employee may destroy evidence or attempt to influence witnesses

  • Relationships at work have broken down and suspension is required to keep individuals apart

Reasonable grounds for suspension

It is important for the employer to have conducted some kind preliminary investigations to establish ‘prima facie’ evidence of the alleged misconduct because suspension should not be a ‘knee jerk’ reaction and an automation process.

It is also important to consider alternatives to suspension, maybe moving the individual to a different area of the organisation or allowing them to working from home for a period of time, whilst the investigation is carried out but this will all depend of the size of the organisation.

The following cases are examples of "knee-jerk" suspensions where the employer failed to consider whether it could be avoided, resulting in a finding that there had been a breach of mutual trust and confidence by the employer:

  • Gogay v Hertfordshire County Council, where the Court of Appeal awarded damages for a psychiatric illness suffered by a care worker in a children's home as a result of her suspension following allegations of sexual abuse of which there was no prima facie evidence

  • Crawford and another v Sufforlk Mantal Health Partnership NHS Trust, where the Court of Appeal held that an NHS Trust had been wrong to suspend two long-standing nurses with no previous disciplinary record pending its investigation into allegations that they had tied a patient with dementia to a chair

  • Edwards v Chesterfield Royal Hospital NHS Foundation Trust, where the Supreme Court confirmed previous case law which held that suspension is an exception to the general rule: suspending an employee can give rise to a separate claim, independently of any (capped) unfair dismissal claim.

  • Eastwood v Magnox Electric plc, the House of Lords confirmed that financial losses flowing from suspension, where an employer has acted unfairly in suspending an employee can be claimed separately from any claim for unfair dismissal. Financial losses could for example arise from damage to the reputation of an employee who was unfairly suspended after having been accused of serious misconduct.

  • Aziz v Crown Prosecution Service, an employee successfully claimed race discrimination when the employer suspended her without undertaking a preliminary consideration of the facts required by its own procedure. The Court of Appeal considered that such enquiries were necessary as a matter of fairness, reasonableness and “good employment practice”.

It is therefore important that the employer, during the considerations to suspend, makes a detailed note, looking at evidence and the reasons why suspension was decided.

Thought also should be given as to what colleagues, clients and other external third parties are told about an employee's suspension and the investigation behind it, taking particular care that any statement made does not betray any assumption of guilt that may prejudice the fairness of a subsequent disciplinary hearing. Suspension should be kept confidential as far as reasonably possible.

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