If one of your employees is under-performing at work or has been accused of misconduct then you may want to suspend them to prevent any further problems and address the situation. However, the case of Crawford v Suffolk Mental Health Partnership Trust last year highlighted that employers may face litigation if they act unreasonably when suspending an employee. This shows that if you do wish to suspend an employee then you should be very careful about how you do so or you may end up facing a claim in the Employment Tribunal for unfair dismissal or constructive dismissal. This article aims to offer some guidance to employers when they’re considering suspending an employee. It will therefore look at the following issues:
- When might an employer want to suspend an employee and why?
- What should an employer consider when contemplating suspending an employee?
- How to avoid litigation when suspending an employee
When might an employer want to suspend an employee and why?
There are many (potentially inexhaustible) reasons why an employer may want to dismiss an employee, ranging from incompetence at work to starting fights in their spare time. For the purposes of this article it will be useful to use categories rather than specific examples – employers normally contemplate suspending an employee if the employee is adjudged to be incapable of carrying out their work because they’re incapacitated (e.g. negligence or illness), if the employee is alleged to have committed an act which could be considered misconduct (e.g. fighting or theft), or if the employee is incapable of carrying out their job because to do so would be illegal (i.e. if they’re an HGV driver and lose their driving licence). A suspension is generally appropriate if the employee in question:
- Is regarded as a potential threat to the business or to other employees; and/or
- It’s impossible to investigate the allegation made against the employee if the employee remains at work; and/or
- Personal or professional relationships at work have broken down
Employers should generally be able to specify one of the above reasons for suspending the employee.
What should an employer consider when contemplating suspending an employee?
There are generally 2 stages of thought that should lie behind an employer’s decision to suspend an employee:
- Can the suspension of the employee be avoided at all?
- Are there reasonable grounds for suspending the employee?
The first thing that an employer should do is consider whether a suspension can be avoided. No action may be necessary in some cases and if action does need to be taken then it may be possible to take some action that avoids suspending the employee, like moving them to another area of the business for a period of time. If it proves impossible to take some other course of action than suspension then the employer should carefully consider whether it has reasonable grounds for suspending the employee. If the employer fails to undertake such a careful consideration and simply suspends the employee because of the nature of the allegation then the employee may have a strong case for constructive unfair dismissal, based on the fact that the employer has breached the implied term of mutual trust and confidence in the employment contract. The employer should therefore normally carry out a reasonable investigation into the allegation (if possible) and make a decision to suspend that is based on the outcome of the investigation.
How to avoid litigation when suspending an employee
Litigation can potentially be avoided by doing the following:
- Investigate the allegations made against the employee
- Make a carefully deliberated and reasonable decision based on the outcome of the investigation
- If suspension can’t be avoided, let the employee know how long they’re being suspended for, why they’re being suspended, and when the decision to suspend will be reviewed
If you’re thinking of suspending an employee then you should get the procedure right. A failure to do so can mean potential cases for unfair dismissal, constructive dismissal or even personal injury (if the employee suffers a mental health problem because of the suspension and its consequences).
Redmans
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