Is suspension the right option?

29 May 2012

Often, in cases of potential misconduct, an employer will suspend the employee who is suspected of committing the alleged act of misconduct.  The confirmation letter sent to the employee will usually contain a line within it saying something along the lines of “suspension is not an indication that the company believes that you are guilty of the allegations and is not a disciplinary measure”.

In the recent case of Crawford v Suffolk Mental Health Partnership NHS Trust the Judge frowned upon this approach and suggested that some employers were too ready to resort to suspension, especially when confronted with a “protection issue”. 

Lord Justice Elias, in a postscript to his judgment said “It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established”

Lord Justice Elias went on to set out the potential impact of a suspension on an employee, including feelings of belittlement, being demoralised, and enforced removal from their work colleagues, many of whom may be the employees friends.  In light of this, Lord Justice Elias emphasised that the use of suspension as a knee jerk reaction will be a breach of the duty of trust and confidence towards the employee.

It is common to suspend an employee pending an investigation into gross misconduct; however, in light of these unequivocal comments by a senior Judge, it is essential that employers consider carefully whether suspension is actually necessary or if there are any other measures, short of suspension, that can be taken to enable the investigation to be completed.  A failure to do so could lead to a successful constructive dismissal claim being brought by the employee.