If serious misconduct has taken place an employer may wish to consider suspending the employee who is being investigated.
Suspension should be considered as an option where there is a potential threat to the employer's business or to other employees. It may also be appropriate where it is not possible to properly investigate the allegation if the employee remains at work, or where relationships at work have broken down.
An employer must have reasonable and proper cause for any suspension. If not then it risks breaching the implied term of mutual trust and confidence. Any period of suspension should be kept as short as possible and should be regularly reviewed.
Sometimes it will be necessary to suspend board members from their duties for misconduct. The process will be similar to that being followed for an employee, except that it will be managed by the Chair of the Board and the Chief Executive of the organisation.
Suspension was found to be a breach of contract
The High Court recently held in Agoreyo v London Borough of Lambeth that the suspension of a teacher to enable a misconduct investigation to be carried out fairly constituted a repudiatory breach of the implied term of trust and confidence.
The teacher was hired to teach a class of children, two of whom were particularly challenging and had behavioural problems. She was not told that she would be teaching children who had such severe behavioural, emotional and social difficulties and did not have any training in how to deal with them. She was suspended because of the force she used in three incidents involving the two children.
Prior to the last incident the teacher sent an email which the judge found to have "all the hallmarks of a genuine plea for help". Following this it was agreed that support would be put in place, yet the suspension occurred almost straight away.
In the judge's opinion the suspension breached the implied term relating to trust and confidence, particularly given that the teacher's line manager had investigated two of the incidents and not considered them worthy of disciplinary action. He was also critical of the fact that the suspension occurred within a few days of a support plan being put in motion. He emphasised "the need to avoid a "knee jerk" reaction, with suspension as the default position without a consideration of the alternatives.
Best practice
Before suspending an employee:
- Consider alternatives to suspension
- Consider putting an express right to suspend in your contracts of employment in the event of serious misconduct
- Ensure you have thought the suspension through and have reasonable grounds to suspend
- Operate any suspension policy consistently to avoid potential discrimination claims
