The decision of whether or not to suspend an employee suspected of misconduct can be a difficult one for many employers
If an employer suspects an employee of serious misconduct, suspension may be an appropriate step to take but only in circumstances where the employee's presence at work would either:
(a) jeopardise the fairness of the ensuing investigation or
(b) where their presence could pose a potential threat to the business or other employees
The decision to suspend should never be taken without proper thought. If you decide to suspend an employee when it is not reasonable to do so or for longer than a period which is reasonably necessary, it could be considered a breach of the implied term of mutual trust and confidence and lead to the risk of constructive dismissal claim being brought by a disgruntled employee.
Suspension should never be a ‘knee-jerk’ reaction and whether it is reasonable and appropriate in the circumstances will depend on the individual facts of the case.
However, you should consider the following:-
- How serious are the allegations? Although this alone will not necessarily be reason to suspend.
- Are there risks if the employee remains eg to other employees; theft of confidential information; damage to reputation; repeat of the misconduct?
- Is there a risk to the investigation if the employee remains eg. influencing witnesses; removing evidence?
- How have you treated others? Is there a discrimination risk?
- Are there alternatives? Does their contract allow them to be moved to another role or location, or would they agree to this? Would it be better for all if they agreed to remain away voluntarily?
Most of all, it is important for employers to have conducted some preliminary investigations to establish a ‘prima facie’ case of the alleged misconduct before a decision is taken on whether or not to suspend.
In the recent case of Agoreyo v London Borough of Lambeth, the High Court was critical of a ‘knee-jerk’ suspension. In this particular case, Ms Agoreyo was a school teacher, responsible for a class of five and six year olds. She was alleged to have used excessive force whilst attempting to control two children. Her employer suspended her, pending a disciplinary investigation. The High Court stressed that suspension is not a neutral act, but “inevitably casts a shadow over the employee’s competence”. It was critical of the employer’s failure to explore alternatives to suspension, and its failure to consider Ms Agoreyo and another witness’s versions of events before suspending.
If you would like to talk through a situation you are dealing with, or if you need any advice on suspension, please do not hesitate to contact a member of our employment team on 0161 837 6844.