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Ask The Expert

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Alan Lewis, Emplyment Solicitor at Linder Myers Solicitors Advises:

An employee has been caught watching pornography on their computer during their lunch break, can we suspend them?”

Suspension traditionally used to be seen as a default position for employers who suspect an employee of committing an act of gross misconduct. However, it is important to not treat a suspension as a mechanism to punish the employee. Instead suspension should only be enforced if (a) failure to do so could hinder a fair investigation taking place by allowing the employee to tamper with evidence or influence any witnesses or (b) it protects an employer’s assets which includes their employees or patients.

When deciding whether or not to suspend an employee, alternatives to suspension must be considered. This includes whether or not an employee can be moved to another part of the employer’s business or whether or not the employee is able to work from home. Indeed it was held in the High Court decision in Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB) that the suspension of a teacher who had allegedly used excessive force to control two children was unlawful. The High Court held that the suspension was a classic “knee jerk” reaction as no alternatives to the suspension were considered.

It is likely that an employee watching pornography during their lunch break will fall under gross misconduct. However, before an employer decides to suspend the employee as a reaction to the gross misconduct, an employer should take a step back and consider the necessity of the suspension.

Should an employer have records to show that the employee was allegedly watching pornography, suspension would not normally be necessary as the employee’s presence in the workplace is unlikely to jeopardise the fairness of the investigation and/or influence the employer’s employees during the investigation. However, it could be argued that if a colleague or patient had witnessed this employee watching pornography and this witness was due to attend an investigation meeting, the decision of whether or not to suspend the employee may change.  Moreover, the employer also runs the risk of facing potential harassment claims from anyone who was offended by the incident and viewed the employer as not acting in a timely manner to deal with the situation.

Further, it would always be prudent of the employer to take steps to actively review the necessity of the suspension whilst it is ongoing.  It should rarely be a decision only visited once except in occasional very short-lived circumstances.

If you require further advice on this please do not hesitate to contact us on 0161 837 6807 or email us on [email protected]

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