Suspension: the basics
In instances of serious misconduct, an employer may in certain circumstances want to suspend an employee who is being investigated as part of a disciplinary process. It is not normally necessary to consider suspension unless there is an allegation of gross misconduct. Even then, a gross misconduct allegation will not always warrant suspension, as the case study below highlights.
Suspension may be appropriate where:
- there is a potential threat to the business or other employees;
- it is not possible properly to investigate the allegation if an employee remains at work. This would usually be because there is a risk that the employee may destroy evidence or attempt to influence witnesses; and/or
- relationships at work have broken down. However, in such cases, each individual is likely to have their own view of who is to blame and employers should be careful not to give the impression of having prejudged this issue.
This list is not exhaustive. Each case should be considered, taking into account these and other factors the employer deems relevant.
Suspension: contractual requirement
We recommend standard employment contracts include a right to suspend, along with a method of calculating pay during the suspension. Even where an employer has the contractual right to suspend, it must be exercised on reasonable grounds and so employers should take care that suspension is justified in the circumstances. A record should be kept of the factors taken into account when deciding to suspend.
Avoiding a breach of the implied term of trust and confidence
If someone is suspended from work, there is a risk that the individual treats this as a breach of contract, resigns and claims constructive dismissal. This would be based on a breach of the implied duty of trust and confidence. In order to reduce the risk of employees having a good claim for constructive dismissal, there are a number of steps employers should take. We recommend that employees should be informed as soon as possible that the decision to suspend has been taken and this should be communicated in writing. This letter should clearly state:
- that the employee is suspended;
- how long the employee can be expected to be suspended for;
- what the employee’s rights and obligations during the period of suspension are – their employment contract continues, but they are not to report to work, must not contact colleagues and must remain contactable; and
- that suspension is on full pay.
The employer should keep the suspension under review so that it continues for as short a period as reasonable in the circumstances. The reasons for the suspension should also be reviewed, as there may be changes on the ground which need to be taken into account. If continued suspension becomes unreasonable, then the employee may be able to argue that the outcome of the disciplinary process has been prejudged, rendering the outcome unfair.
An employer should also continue to engage with the employee and be clear that the suspension is not punitive. Rather, it is intended to facilitate investigation.
A “knee jerk” decision to suspend gives an employee a much stronger argument that there has been a breach of mutual trust and confidence by the employer. A suspension will be treated as “knee jerk” where it was automatic and the employer did not think through other measures which could have been put in place or whether it could have been avoided entirely.
The case study below illustrates the challenge an employee can make, based on an employer’s decision to suspend.
Case study: Upton-Hansen Ltd Architects (UHA) v. Gyftaki
In the recent case of Upton-Hansen Ltd Architects (UHA) v. Gyftaki the claimant, Ms Gyftaki, was employed as a senior architect at UHA.
Ms Gyftaki gave notice that she would have to take extra annual leave due to a family emergency. Ms Gyftaki had already used up her holiday entitlement for the year. Due to genuine confusion, Ms Gyftaki was under the impression that she had been granted additional leave.
Late in the evening, the night before Ms Gyftaki was due to travel, her employer informed her that her request had been denied. Despite this, Ms Gyftaki travelled and said she would take the time as unpaid leave. Upon her return, Ms Gyftaki was suspended pending an investigation into the allegation that she had taken an unauthorised holiday. At this point, UHA also told Ms Gyftaki that they would also be investigating issues relating to her previous holiday absence.
Ms Gyftaki resigned when she was suspended. She brought claims against UHA for unfair constructive dismissal and wrongful dismissal. Ms Gyftaki argued that she had been constructively dismissed as both her suspension and the introduction of the issues of previous holiday absence into the investigation amounted to fundamental breaches of the implied term of mutual trust and confidence that was owed to her by UHA.
It was held by both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) that Ms Gyftaki’s suspension amounted to a breach by UHA of the implied duty of trust and confidence. Both held that Ms Gyftaki had been constructively and unfairly dismissed.
In evidence before the ET, one of the directors of UHA said that in view of Ms Gyftaki’s seniority, and the fact that she was project lead on three important projects, he felt that suspension was a prudent step to take. He justified this on the basis that it would protect the organisation, preserve the confidentiality of the investigation and protect Ms Gyftaki from embarrassment. Her business email account was also suspended.
The ET described the decision to suspend Ms Gyftaki as being at the heart of this case.
The reasons given by UHA, as found by the Tribunal, will be familiar to many employers and you might have sympathy with UHA. UHA was nervous that Ms Gyftaki would behave inappropriately at work, were she not to be suspended. They thought she was likely to be upset and so would set a bad example to her junior colleagues. There was also a concern that she might possibly breach any confidentiality obligation UHS had placed upon her.
The Tribunal gave no credence to these reasons, finding that there was no real evidence to support the stance of the directors. The ET did not accept that the suspension took place to protect the integrity of any investigation or the business as a whole. The ET accepted Ms Gyftaki's evidence that, given a protracted period of suspension, it was more likely for questions to be asked by colleagues and inferences drawn, rather than Ms Gyftaki simply returning to work and being advised to keep the matter confidential. The length of the suspension (more than three weeks) exacerbated the concerns the ET had over the reason for the suspension, particularly in light of Ms Gyftaki's mental ill health.
The ET found that, whilst the breach of trust and confidence was not the most shocking they had seen, there was indeed a breach and that one of the significant matters leading to that breach was the decision to suspend Ms Gyftaki. The ET, in applying a common sense approach, found that the situation could have been avoided by both parties communicating in a more sensible and timely way about the last minute nature of the request for additional leave. Ms Gyftaki could have asked sooner; UHA could have turned the request around before 8.30pm on the night before the leave.
The EAT agreed with the ET in this case. In relation to the matter of the suspension, the EAT found that UHA’s reasons for suspension were not related to Ms Gyftaki’s taking unauthorised absence, but rather how she might behave on her return to work when she was told that there would be a disciplinary investigation. It found the ET had been entitled to conclude that the suspension had been an element that had caused the fundamental breach leading to the constructive dismissal finding.
The EAT remitted the case back to the ET for a recalculation of the remedy.
Consistency of treatment
A suspension policy, in the same way as other policies, should be operated consistently. This comes into sharp focus where, for example, two or more employees are involved in an incident of misconduct – one is suspended, and the other is not, without good reason for the difference in treatment. This of itself could give an employee the basis of a claim for breach of trust and confidence. Moreover, if the employee who is suspended has a protected characteristic that the other does not, this might give rise to a case of direct discrimination.
It should always be clear, and should certainly form part of an employer’s paper trail, that there has been some consideration given as to whether suspension is necessary in the circumstances and for what reason. The fact that an investigation might be required does not mean that it goes without saying that suspension should also take place.
Employers must remember where an employee resigns during a suspension and claims constructive dismissal because of it, the tribunal will focus very much on the suspension. The tribunal will not focus on whether the employer would have been justified in dismissing or disciplining the employee. The decision to suspend is the material issue and must therefore be given the attention it deserves.