15 Jan 2018

Dear Auntie,

I am a HR manager and we have an employee who has been accused of assaulting another member of staff at our Christmas party. I am proposing to suspend this employee immediately before commencing an investigation into the allegations. What are the legal risks of suspending an employee in these circumstances?

What are the legal risks?

When an employee is accused of misconduct, you need to be careful when deciding whether to suspend.

There have been many cases of knee-jerk suspensions where employers failed to consider whether suspension could be avoided. Two of the leading cases are Gogay v Hertfordshire, a Court of Appeal case, where a care worker in a children’s home was suspended following allegations of sexual abuse and, more recently, the High Court case of Agoreyo v Lambeth where a teacher was suspended following allegations that she used unreasonable force against children in her classroom.

In both of these cases, the employees were successful in arguing that their employers were in breach of the implied term of mutual trust and confidence and were awarded damages for constructive dismissal after resigning in response to being suspended. However in Gogay, it transpired that there was no evidence to support the allegations of sexual abuse and in Agoreyo, the decision maker was criticised for failing to speak to the head teacher who already knew about the incidents and had devised a plan to support the teacher which had not yet been implemented.

The key theme arising from the case law is that suspension is not a neutral act and it can have a detrimental impact on an employee’s reputation and ability to return to work if there is subsequently no evidence to support the misconduct or if it is not sufficiently serious to warrant dismissal. This is particularly the case for employees working in professional roles and it may lead the employee to consider that dismissal is a foregone conclusion.

What are the financial implications?

A claim for constructive dismissal is usually limited to damages for the duration of the employee’s notice period only. However in Gogay, damages for psychiatric illness were also awarded. If an employee has more than two years’ continuous service, they may also claim unfair constructive dismissal which could result in a basic award and compensation for loss of future earnings (currently capped at £80,541 or a year’s pay, whichever is lower).

In addition to the above, if any decision to suspend is discriminatory, an employee could bring a claim for discrimination which can result in loss of future earnings (which is uncapped, although there is no double recovery under any unfair dismissal award for loss of future earnings) and injury to feelings of up to £42,000.

How can any legal risks be minimised?

Before deciding whether to suspend this employee, you should take the following steps:

  1. Speak to the employee in question before suspending and ask for their response to the allegations against them.
  2. Consider whether the alleged misconduct is sufficiently serious to warrant suspension. If the alleged misconduct is unlikely to lead to dismissal then suspension is likely to be inappropriate.
  3. Consider why you need to suspend the employee and whether suspension is really necessary i.e. is there a significant risk of them trying to interfere with the investigation, influence any witnesses and/or are they genuinely a danger to other members of staff?
  4. Consider whether there are any alternatives to suspension such as moving the employee to a different department or location, either on a voluntarily basis or if there is a mobility clause in the employment contract.
  5. Consider the employee’s role and disciplinary record. If the employee is in a professional role then the impact on their reputation is likely to be much more detrimental compared to other workers.
  6. Consider how other employees have been treated in similar situations and ensure all employees are treated in the same manner, to avoid any arguments that the suspension is discriminatory.
  7. Check whether there is a term in the employee’s contract providing the employer with a contractual right to suspend. If there is not then any suspension may be in breach of contract. However, note that even if there is a contractual right to suspend, this will not override the implied term of trust and confidence.

If having considered the above you have reached the conclusion that suspension is the only option, ensure that the employee is invited to a meeting, informed of the reasons for suspension verbally and handed a letter at the end of the meeting confirming the reasons for the suspension.

To minimise the risk of the employee bringing a subsequent claim, it is important that they are suspended for as short a period as possible and you keep the decision to suspend under regular review. 

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