Suspending an employee: our guide to making an informed decision
Suspension casts a shadow on an employee’s character. But employers should not avoid suspension completely, the decision to suspend needs to be a…
The case of Agoreyo v London Borough of Lambeth is the latest in a line of legal authorities which make clear that suspending an employee is not a neutral act, no matter how the employer’s confirmatory letter might describe it.
Suspension comes with stigma attached; it casts a shadow over the employee’s competence or character. That doesn’t mean that an employer should not suspend under any circumstances, but a decision to suspend needs to be a considered and informed one and not, as Agoreyo and previous authorities have stated, a “knee jerk reaction.”
These cautionary words do provide something of a tightrope. It is particularly noticeable that many of the authorities on this issue over the past 18 years or so, have involved safeguarding situations; ones where employers may have considered it is necessary to suspend. Where an employer (for example in a care environment) is informed of concerns of a safeguarding nature, then the employer will undoubtedly consider it necessary to take steps to eliminate the risk of other safeguarding concerns arising. Doing nothing in these situations will not be an option; however suspension may not be the only option.
So if you are under pressure to decide whether to suspend, what factors and risks should you have in mind?
The following points will help:
- In the Agoreyo case, the Court of Appeal was critical of the finding of the lower court, that the employer had no choice but to suspend. It might be what you decide to do in a particular situation but before doing so, make sure that alternatives to suspension are considered. Even agreeing with an employee a period of special leave, will carry less stigma than the unilateral act of suspension. Other options might be home working, working on specific projects or in another workplace.
- Suspension will be on full pay. In complex disciplinary situations it could last weeks, if not months. In commercial terms, is there any better, more cost effective alternative?
- Where you do reach a decision to suspend, then there must be some evidence to indicate there is cause for concern about the issue in question. A bare allegation should not lead straight to suspension without some indication that the allegation has some credibility. Clearly you are not going to wait for the outcome of a full disciplinary investigation before deciding whether to suspend; but the reasonable employer will want at least to understand that there is some evidence to back up the allegation.
- If a decision is taken NOT to suspend when an allegation is first raised, that decision can be reviewed and changed as an investigation proceeds. On the other hand, it is far harder to suspend and then, part way through an investigation, reverse that decision and bring the employee back in to work.
- Suspension damages employment relations, sometimes irreparably. It is important to recognise that suspending an employee may well be the death blow of that relationship. In our experience this is particularly the case with senior employees, where the stigma and the damage to a professional employee’s reputation and standing can be considered to be devastating. You should recognise and factor in this risk when considering whether to suspend.
- There are still some disciplinary procedures which refer to suspension being automatic where an allegation of gross misconduct has been made. If a procedure does say this it should be updated. Otherwise, it increases the risk that a decision to suspend is seen as an automatic (therefore “knee jerk”) reaction to a gross misconduct allegation.
- Many suspensions will not, in themselves, give rise to claims against employers. So, where an employee is suspended on suspicion of gross misconduct and is subsequently dismissed then the resulting claims are likely to focus on the fairness of a dismissal rather than the earlier decision to suspend. There are certain cases though where suspension will, of itself, lead to claims against the employer:
- An employee can resign under circumstances of constructive dismissal;
- An employee can claim that the decision to suspend was so devastating that it caused her/him psychiatric injury;
- An employee can claim that a decision to suspend is unlawful and apply for an injunction to restrain the suspension; an/or
- Discrimination claims may arise.
When dealing with a particular employee, you will generally have an understanding about whether a particular issue may give rise to a claim in itself and, if you are in doubt, we would be happy to help you assess the risks. However, in broad terms, it is advisable to approach decisions about whether to suspend with a little more caution that you may have done previously.
Mark Leach (email@example.com) is a Partner in the Employment, Pensions and Immigration Team and is based in Manchester. If you have any questions, please do not hesitate to contact Mark or speak to your usual Weightmans advisor.