We are often asked as advisors of employers whether it is appropriate for a client to suspend one of their employees pending a disciplinary hearing. Is suspension a safe course of action?
Check your disciplinary procedure
The starting point is to look at the company disciplinary procedure to ascertain whether there is provision for suspension. For example, many organisations provide that suspension may be implemented if the circumstances could be deemed gross misconduct.
It is also wise to consider the ACAS Code of Practice on Disciplinary and Grievance Procedures. Paragraph 8 of the Code makes it clear that where a period of suspension with pay is considered necessary, it should be as brief as possible, should be kept under review and should be made clear that suspension is not seen as a disciplinary action.
Knee jerk reaction
Some employers suspend as a matter of routine in all cases which could lead to disciplinary action. This approach is wrong and not without real risk. Employers need to weigh up each case on its own merits and decide whether a suspension is in fact necessary (to use the ACAS wording). A knee jerk suspension without any balancing act by the employer to weigh up the pros and cons is open to challenge.
Employers often describe suspension as a neutral act. The employee is still on full pay and gets to sit at home or go to the pub, so where’s the harm, right? Well many employees often find the act of suspension humiliating and distressing. A recent case has demonstrated further why employers should always think before suspending.
In Agoreyo v London Borough of Lambeth, a teacher was suspended due to the force she used in dealing with 2 children. Her employer’s stated rationale for the “neutral” suspension was to allow an “investigation to be conducted fairly”. The employee resigned immediately in response to the suspension and pursued a claim for damages arising from breach of contract (the act of suspension being the breach). She had only been employed for 5 weeks at the time of suspension. The High Court held that the act of suspension was a repudiatory breach of the implied term as to trust and confidence. The employee was successful.
The Agoreyo judgment makes it clear that employers are no longer on safe ground to hand out knee jerk suspensions. This approach risks breaching the employment contract.
What should employers do?
Weigh up the pros and cons of suspension. Consider whether there are any alternatives to suspension. Listen to the employee’s version of events before reaching a decision. Document the considerations in the letter of suspension so that the letter backs up the “Why?” question.
Take advice before implementing a suspension.