Under what circumstances have employers the right to suspend employees? What recourse have employees who have been unfairly suspended?

Introduction

When an employee has been accused of gross misconduct or some other serious disciplinary matter, the employer will usually suspend the employee on full pay pending the outcome of the investigation or disciplinary process. The company’s disciplinary policy will typically reserve the right to do this. This right is also recognised in Paragraph 4 Part 12 of the Code of Practice on Grievance and Disciplinary which states that “an employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.”

During the period of suspension, the employee’s contractual rights and obligations under the contract of employment continue. An employee should be suspended with full pay pending the outcome of an investigation or disciplinary process. Suspension without pay is a punitive rather than a corrective measure and therefore, an employee should only be suspended without pay in circumstances where the outcome of an appeal of a dismissal is pending.

Case Law

Despite the common practice of suspension, an employee should only be suspended if it is considered to be absolutely necessary and he or she should be informed of the length of suspension. In Deegan v Dunnes Stores, the court held that suspension should not be for an indefinite period as this would amount to a dismissal.

Case law has repeatedly shown that placing an employee on suspension is significant. In Rajpal v Robinson, the court noted that the decision to suspend an employee was “drastic in nature”. The Court took a similar approach in The Governor and Company of the Bank of Ireland and James Reilly. In that case, an employee was put on paid while on suspension pending an investigation into an alleged breach of the company’s Internet and email policy. The Court emphasised the serious nature of suspending an employee with or without pay and stated that the potential reputational damage caused by the suspension may never be overcome even if the employee is subsequently found not guilty of the allegations.

It was stated that suspension would be justified in the following circumstances:

  1. To prevent repetition of the conduct complained of;
  2. To prevent interference with evidence;
  3. To protect individuals at risk from such conduct; or
  4. To protect the employer’s business and reputation.

Seriousness of Suspension

In Hansen Architects Ltd v Ms X Gyftaki, both the UK Employment Tribunal and the UK Employment Appeal Tribunal took a similar view on the serious nature of suspension. In that case, it was held that the decision to suspend an employee was a breach of the implied duty of trust and confidence resulting in her constructive dismissal. The employee had exhausted her annual leave but needed to urgently travel to Greece for four days. Having requested additional leave from her line manager, she believed it had been approved. Her line manager subsequently refused the request. The employee informed him that she could not postpone the trip. When the employee returned, she was suspended on full pay pending an investigation into her misconduct, namely, failing to comply with management instructions and a period of absence in July 2017 where she had taken more leave than she booked but which was retrospectively approved by management.

The employee raised a grievance but became unwell as a result of the suspension and the investigation. The employee took sick leave and subsequently resigned before taking a claim for constructive dismissal and wrongful dismissal. She argued that the suspension and the employer’s consideration of the period of absence in July 2017 amounted to a breach of the implied term of mutual trust and confidence.

The employer argued that it was necessary to suspend the employee in order to protect the company and preserve the confidentiality of the investigation. The employer was concerned that due to the seniority of the employee and her role within the company, she would set a bad example for other employees. The UK Employment Tribunal held that the suspension of the employee amounted to a breach of the implied term of mutual trust and confidence and upheld her claim for constructive dismissal. It was found that there no evidence to support the reasons given by the employer to suspend the employee and that due to the length of suspension, it was more likely for inferences to be drawn and questions to be asked, rather than the employee returning to work and keeping the matter confidential.

On appeal, the UK Employment Appeal Tribunal agreed with the decision of the UK Employment Tribunal and held that the employee was suspended for fear of how she might behave when she returned to work due to the ongoing disciplinary process rather than her period of absence in July 2017 and her recent period of unauthorised absence.

Conclusion

Employers should proceed with caution when deciding to suspend an employee who is accused of gross misconduct or some other serious disciplinary matter. There should be a disciplinary policy in place which reserves the right to suspend an employee and it should be applied to all employees in a consistent manner. The employee should be informed of the reasons for the suspension and given the chance to respond. In addition, details of the alleged misconduct should be contained in a letter inviting the employee to the investigation meeting. Suspension should last no longer than is necessary and cannot