Suspension of an employee must not be a “knee-jerk” reaction
A recent case serves as an important reminder to employers that suspension of an employee prior to or during the course of a disciplinary procedure should be considered carefully in light of all the circumstances and should not be a “default” position.
The contract of employment contains an implied mutual term of trust and confidence. An act that is likely to destroy or seriously damage that implied term can lead to an employee resigning and claiming that they have been constructively dismissed. The act of suspension can in some circumstances amount to a beach of the implied term of trust and confidence.
Ms A was a primary school teacher. Allegations were made against her that she had used unreasonable force against two children on three occasions, in that she had “dragged” a child out of a classroom or along a corridor and that she had carried a child out of the classroom. Ms A was suspended. The letter of suspension stated that the suspension was a neutral act, not a disciplinary sanction, and that the purpose of the suspension was to allow the investigation to be conducted fairly.
Ms A did not have two years’ service, which is required for an employee to issue a claim in the Employment Tribunal for constructive dismissal. She issued a claim in the County Court for breach of contract, alleging that her suspension was a repudiatory breach of the implied duty of trust and confidence. She argued that suspension was not reasonable or necessary in order for the investigation into the allegations against her to take place. The County Court found that the employer was “bound” to suspend Ms A in light of the allegations.
Ms A appealed successfully to the High Court. The Court found that suspension in this case was a “knee-jerk” reaction and was a breach of the implied term of trust and confidence. Factors taken into account by the Court included that there was no attempt to ascertain Ms A’s version of events, or her knowledge of the events, before the decision to suspend was taken; there was no consideration of alternatives to suspension; and the letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension.
This case is a reminder of an existing principle that can sometimes be forgotten in the heat of a disciplinary process. Employers should consider carefully all factors when reaching a decision about suspension of an employee, even in cases where the allegations are of gross misconduct.
In particular, the employer should check whether there is a clause in the contract of employment that entitles them to suspend the employee. Even where there is such a clause, the employer still has to consider whether the suspension would be a breach of trust and confidence. Those taking the decision to suspend should be clear about why suspension is necessary and whether there might be any alternative. Any suspension should be on full pay and should be kept as short as possible.
29 September 2017
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