Employers warned against ‘knee-jerk’ reactions
Paul Campbell, a partner at law firm Chadwick Lawrence, said employers must have reasonable grounds to suspend staff members suspected of misconduct.
“Those are judgment calls, and many employers get it wrong and just suspend automatically,” he said.
“Normally, the law would only recommend that you do it in serious cases where you need the person out of the way.””
Reasonable grounds for suspension could include the need to protect the organisation, its employees or the public, or prevent interference with the investigation by the staff member in question, he said.
Suspensions imposed without good reason could form the basis of a tribunal claim, he warned.
“They should be approached with care by employers,” said Mr Campbell. “They shouldn’t be used as a knee-jerk reaction to allegations, particularly if those allegations are serious and likely to affect mutual trust and confidence.
“If that is lost or damaged by either side, employer or employee, that can be grounds to dismiss if you are an employer or reason to claim constructive dismissal if you are an employee.”
Employers should ideally undertake a limited form of investigation before weighing up whether or not to suspend, he said.
“You can still do an investigation and bring people to disciplinary procedures while they remain in work,” he said.
“It’s questionable whether the use of suspension is always exercised fairly and appropriately, and it may be that they jump to it too quickly.”
Case law exists on the issue, including that of a care worker automatically suspended by Hertfordshire County Council following unfounded allegations of abuse.
The Court of Appeal held in 2000 that the “knee-jerk” suspension breached the employer’s duty of trust and confidence and the employee was awarded damages.
Mr Campbell said public sector employers could learn from small businesses, which are less inclined to impose suspensions and tend to bring disciplinary matters to a conclusion more swiftly.
“Companies with 30, 40, 50 employees, who are fighting hand-to-mouth just to survive, can’t afford to have someone sit at home and pay them their salary,” he said.
“They will undertake to move the matter forward to a disciplinary process within a few weeks and get it out of the way.
“I have found with public sector authorities, they have the luxury of being able to pay people for a long time. They wouldn’t do it if it was their money, I suspect.”
Public sector employers must be seen to be carrying out internal employment procedures more thoroughly, as they are more accountable, Mr Campbell conceded. But he warned that many were “fairly entrenched” in following such processes “at all costs”.
Suspensions can become unavoidably lengthy when a criminal investigation is involved, as cases can take a long time to reach court and disciplinary procedures can usually take place after only a conviction, he said.
While considered a neutral act in employment law, it is “rare” for an employee cleared of any wrongdoing after a lengthy suspension to be able to return to their job without a stain on their character. “Common sense tells you if someone is not at work for 12 months, rumours fly around and people jump to their own conclusions Usually the damage is done,” Mr Campbell added.