When is suspending an employee a breach of trust and confidence?

Dentons

Suspension can be a very useful tool for employers. However, in certain circumstances it can amount to a breach of trust and confidence, which would then allow the suspended employee to resign and claim constructive unfair dismissal. The recent case of Harrison v. Barking, Havering & Redbridge University Hospitals NHS Trust (the Trust) has served as a useful reminder that employers need to be careful when making the decision to suspend an employee and to make sure that it is a proportionate step to take in all of the circumstances.

Facts

Ms Harrison is employed as the Deputy Head of Legal Services for the Trust. Her work mainly involves working on inquests, handling claims, providing advice to the Trust and legal teaching. Concerns about her handling of a clinical negligence case were raised. Prior to this, no issues with Ms Harrison's performance of her role had arisen or similar allegations made. The Trust decided to suspend Ms Harrison while an investigation into the allegations took place. Ms Harrison was not given details of the allegations that she was facing at the time of her suspension. 
Ms Harrison was subsequently signed off with stress and anxiety. As many employers do in these circumstances, the Trust lifted her suspension and she was treated as being on sick leave. Ms Harrison was invited to return to work on restricted duties. She would have been doing largely administrative work and legal teaching, but with no casework. She refused to do so because she considered that to be a demotion and contrary to medical advice from an Occupational Health professional, which was to the effect that a return to full duties would improve her health. As a result, Ms Harrison was suspended again, this time for refusing to obey an instruction.

Ms Harrison sought an injunction permitting her to perform the majority of her duties autonomously while the investigation continued.

The decision

The High Court granted the injunction as it considered that Ms Harrison had strong grounds to argue that the Trust’s actions amounted to a breach of the implied duty of trust and confidence. This is because the Trust was unable to show that there was a reasonable and proper cause for suspending her from most of her normal duties. As there had only been an issue raised in relation to a specific type of work, i.e. the handling of clinical negligence claims, suspension from all her normal duties was excessive. The Trust could have simply chosen to stop her from carrying out work on clinical negligence claims while the investigation took place. This would have had the effect of removing any risk to the Trust while allowing Ms Harrison to continue with her other work.
There was no evidence that enabling her to undertake the majority of her normal duties would harm the Trust. On the other hand, the suspensions had affected her health and were to her detriment professionally.

The High Court also took into account that further issues raised about Ms Harrison's other work had only been raised after the decision to suspend had been made. In order for a suspension to be reasonable, the employer can only rely on issues that existed prior to the decision to suspend.
Because the High Court was considering whether an injunction should be granted, it had to take into consideration whether damages would be a sufficient remedy and where the balance of convenience lay. It decided both of these factors in favour of Ms Harrison.

This case again demonstrates that employers need to tread carefully when suspending an employee to avoid any claim that the implied term of trust and confidence has been breached. It is an unusual case as the employee concerned decided to apply for an injunction rather than resigning in response to the breach of trust and confidence and bring a claim of constructive unfair dismissal, but the principles remain the same. There has been no determination that the act of suspension was a breach of trust and confidence in this case, only that she had strong grounds to make out that argument.

What should an employer consider when suspending an employee?

It is important to consider each situation on its facts and avoid a "knee jerk" reaction that, because the allegations are serious, it is necessary to suspend. Generally, suspension is reserved for those cases where leaving the employee in situ is a risk to the business or other employees – for example, in cases of alleged theft or violence, or where their presence in the business will prevent a proper investigation taking place, such as by intimidating witnesses or destroying evidence. 

As in Ms Harrison's case, the employer should consider whether there are alternatives to suspension which would remove any risk or threat to the business. For example, the employer should consider whether it is possible to move the employee to a different area of the business or to prevent them from carrying out certain aspects of their role.

Employers must also consider whether there are reasonable grounds for the suspension. Just because there is a serious allegation made against an employee does not mean that the decision to suspend is fair and reasonable. Employers should consider whether there is any evidence that, on the face of it, back up the allegations made. This does not mean that a full investigation needs to take place, just that there is some evidence.

Employers must give consideration to what colleagues, clients and third parties are told about the employee's suspension, as poor communication of the decision to suspend can also amount to a breach of trust and confidence. This is particularly sensitive when dealing with more senior employees who will be able to argue damage to reputation and the undermining of their position, if this is not handled correctly. Employers must make sure that communications made do not give any indication of an assumption that the suspended employee is guilty of the allegations. To do so would make it difficult for an employee to return to work, even if cleared of all allegations.

Summary

Suspension, when carried out properly, is really helpful and allows employers to remove employees from the workplace in order to conduct a full and thorough investigation into allegations that have been raised. However, despite employers making clear that it is not a disciplinary sanction and does not imply guilt, it is often viewed as such by employees. This means that care has to be taken when making the decision to suspend and when communicating that to employees. Provided that the employer has taken care over the decision and its wider communication, it will continue to be a useful tool. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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