The court of appeal has confirmed that suspension of an employee is to be treated like any other alleged breach of the implied term of mutual trust and confidence. Does the employers conduct, without reasonable and proper cause, destroy or seriously damage the relationship of trust and confidence? This was confirmed in The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo [2019] EWCA Civ 322.
The following facts should be taken into account when deciding if suspension is the correct thing to do:
What is the reason for suspending and are there any alternatives to suspension?
The most common reason for suspension is either to protect a vulnerable person (e.g. a pupil or a member of staff) or to ensure the investigation can be carried out fairly.The case Agoreyo confirmed that suspension must not be a “knee-jerk” reaction. Even where gross misconduct is alleged, suspension is not always necessary.
In Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, the claimants appeared to have used a method of restraint on a patient which was not permitted in the procedures. In circumstances where two nurses with unblemished records were facing charges of gross misconduct and a referral to the police, Elias LJ expressed doubt that there was any real risk of repetition.
It is good practice to look at whether it is possible for an employee to work at a different location or a different role to limit the risk of the incident taking place again.
Speak to the employee to gain an explanation of their conduct before deciding to suspend
It is important to speak to the employee to find out the reason for their conduct and take note of all factors. The employee may provide a reason that explains why it is unlikely to happen again. Whatever the explanation it should be considered when forming the decision. An overriding factor to the employee’s explanation is the protection of another, especially a vulnerable person.
How long should the suspension be?
Suspensions should be as brief as necessary. This is something that should be kept under review and as circumstances change, review the decision.
Communicating the decision
When communicating the decision of suspension, it is important to clearly state the reasons for suspension. Communication should be in writing and set out the terms of suspension. It should also inform the employee that it is a temporary measure; it is not a disciplinary sanction and it does not assume guilt.
