Any suspension of an employee pending a disciplinary investigation should be as brief as possible and kept under review. If a suspension continues for longer than necessary the employer may be in breach of contract and have failed in its duty of care to its employee.

M was a prison officer at a female prison. After six years in post, he was suspended in February 2010 after a prisoner made allegations of sexual assault against him. The police investigated, and M was arrested, interviewed and his home searched. At the conclusion of the police investigation, M was not charged. However, he remained suspended (on full pay) until his employer concluded its disciplinary process. The employer decided to postpone the internal investigation into his conduct in November 2010 because of ongoing related criminal proceedings against other prison officers. This had the effect of prolonging M's suspension. M was suffering from depression, triggered by the circumstances in which he found himself. The employer eventually dismissed the complaint against M, and invited M to return to work in July 2012 (more than two years after his original suspension). However, M was unable to return to work due to his depression. In response, the employer dismissed M in May 2013 on the grounds of his ill health. M brought a claim for damages, arguing that the psychiatric injury he had suffered was caused by his employer’s negligence and/or breach of contract.

The High Court found that M’s employer had been in breach of its duties when it deferred its internal investigation in November/December 2010. It followed that there was a further breach in continuing the suspension beyond the date on which the disciplinary process should have been concluded, i.e. by May 2011. The court held that the fact that M had not appealed his disciplinary suspension was irrelevant (indeed the court was satisfied that any appeal would have been futile in any event). Were it not for the breaches, M would have been able to return to work by May 2012, after a period of recuperation from his psychiatric injury. As it was, extending his suspension prolonged his depression and his employment had been terminated as a result. M was awarded over £286,000 in damages (mainly based on his future loss of earnings).

Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB)