Suspension – a neutral act?

All HR departments will be familiar with the standard language of a suspension letter telling the employee that suspension is a 'neutral act' and 'not a disciplinary sanction'.

If you are on the receiving end of that letter though it probably feels akin to a finding that you are at least probably guilty of wrongdoing, so much so that you are dangerous to keep in the workplace. You will probably be worried about what everyone else thinks about your extended and hushed absence from work to the point that the stigma of that is more damaging than an actual finding of guilt.

And case law in fact agrees with employees that it is not a neutral act; Sedley LJ commented in one case that:

"Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence. Of course this does not mean that it cannot be done, but it is not a neutral act."

Whether or not suspension is a neutral act is not a relevant legal consideration – the neutrality of the suspension is only really relevant to employee relations. A recent Court of Appeal case, Mayor and Burgesses of the London Borough of Lambeth v Agoreyo [2019] serves to remind us that it will only be legal to suspend an employee if the employer has reasonable and proper cause. This is the test a tribunal will apply when considering whether the act of suspending the employee breached the implied term of trust and confidence entitling the employee to resign and bring a claim for constructive dismissal.

In this case, a primary school suspended a teacher after colleagues accused her of using excessive force against two young pupils. She claimed it was a 'kneejerk' suspension and thus a breach of the implied term of trust and confidence. She resigned and brought a claim which ultimately found its way appealed to the Court of Appeal who confirmed that, in order to successfully defend the claim for breach of contract, the school did not need to show that it was necessary to suspend the teacher, just that it had reasonable and proper cause for doing so.

What should you consider before suspending an employee?

1. Do you have reasonable and proper cause for suspending?

You should be able to demonstrate that the decision to suspend an employee has been a decision made in response to the particular circumstances – and not just a knee-jerk or automatic response based on a disciplinary policy.

Reasonable and proper cause does not mean that you have to have completed the disciplinary investigation before you can decide if suspension is appropriate. But it does mean that there must be some evidence to indicate that there is real cause for concern that the allegation might be correct.

In an ordinary workplace therefore, a bare allegation from one employee without some additional evidence suggesting the potential for credibility should not form the basis for suspension. Often, the employee's own response to allegations in an early investigation meeting might well be the source for you to feel comfortable that there is, or is not, reasonable and proper cause for suspension (having heard the employee's response to the early allegation and evidence that you have). This is why we would always recommend that suspension is only decided upon after you have done some preliminary investigation into the allegations and you have spoken to the employee about them.

If you are not clear on whether there is reasonable and proper cause for concern you can always put in place alternative control measures and/or suspend at a later stage once you have more information. Failure to suspend will not be fatal to a decision to dismiss for gross misconduct down the line when you do have all the facts (although the growing pattern of disciplinary investigations taking months to be completed might raise more of an eyebrow in such circumstances). Equally, if further investigation seems to suggest there is no longer reasonable and proper cause to suspend, you should lift the suspension.

Employers should also be aware that caution should be exercised around suspension as employees can seek to bring a claim in the civil courts for conduct prior to a dismissal, such as an unfair suspension, and access uncapped losses that they could not access in an unfair dismissal claim in front of an Employment Tribunal. For example, in an exceptional case an employee could claim for significant losses arising from psychiatric injury as a result of an unfair suspension which amounted to a breach of contract.

2. How long is the investigation likely to take? What will the cost of suspension be?

The more involved the issues to be investigated, the longer suspension is likely to continue, which significantly increases the risk of suspension becoming a breach of contract or of employee relations being irreparably damaged in any event. It also means you might have an employee on full pay for a very long period of time with no productivity at all. All of these factors together might make you consider what alternatives there are that you would like to explore agreeing with the employee instead of suspension.

3. Might suspension be discriminatory? Is there a disability to be considered?

If you do not operate your suspension policy consistently you run the risk of discrimination claims. For example, if you suspend one party to an altercation in the workplace but not the other, without good reason for the difference in treatment, the suspended employee might be able to make out a prima facie case of direct discrimination if they have a protected characteristic that the other employee does not have.

If you suspend an employee for misconduct which arises from their disability then this may be discriminatory when there are less discriminatory means for you to complete your investigation and/or protect the business. In addition, the act of suspending can have particularly significant impacts on some employees; for example, an employee with autism to whom routine is very important will be affected far more negatively by suspension that an employee without autism. If you know the employee concerned is disabled, do consider the impact and risk to them as part of your decision making process before suspending.

4. What are the alternatives to suspension?

• Working from another workplace or from home.
• Working in a different team.
• Agreeing special paid leave.

Make sure you give yourself the possibility of these alternative options by including them in contracts where disciplinary action and suspension is referenced.

5. What does suspension on full pay mean?

Getting pay right for a suspended employee is important. If you suspend and then fail to pay the employee what they are contractually entitled to this raises the risk of a successful claim for unlawful deductions and/or breach of contract.

Employees have to be paid whilst suspended given that the employee is still “ready and willing” to work and is therefore still providing consideration for their pay. Since it is the employer’s choice to suspend them, stopping their pay without a clear contractual right to do so would amount to an unlawful deduction. Even if you have a clear contractual right to suspend without full pay, operating such a harsh provision runs the risk of breaching the implied term of trust and confidence and/or that the dismissal outcome of a later disciplinary hearing was a foregone conclusion.

The concept of full pay is straightforward for employees who are simply paid a basic salary alone. But it is less obvious if the suspended employee works irregular hours and/or has significant elements of commission attached to their pay. An unreported Employment Appeal Tribunal decision (Rice Shack v Obi) concerned a zero hours worker who was suspended for nine months and paid nothing at all during that period; average actual pay was the correct measure for what she should have been paid during suspension in the absence of a contractual provision specifying otherwise. Some contracts will specifically indicate that an employee will receive 'basic pay' only during suspension but, for employees with significant elements of pay made up of commission or other bonuses, suspending with less than normal pay does run the significant risk of an argument that suspension is a breach of the implied term of mutual trust and confidence.

If you want to be able to pay statutory sick pay when an employee who is suspended goes off sick then it is important that the wording in your employment contract (a) does not give employees an entitlement to full pay during suspension and (b) clearly entitles you to pay SSP in this scenario – otherwise stopping the full pay could be an unlawful deduction from wages.

For more information on managing employee suspensions, please contact me at [email protected] or 01782 246 601.