The Court of Appeal has expressed the view that, in the context of misconduct investigations, suspension "should not be a knee-jerk reaction."
This case concerned the suspension, pending investigation, and later dismissal of two nurses for the alleged assault of a client. The two nurses won their claim for unfair dismissal in the Employment Tribunal and the employer appealed successfully to the Employment Appeal Tribunal. The Court of Appeal restored the original decision in favour of the employees but it is their comments regarding when it is appropriate to suspend employees that are of the most interest.
The Court of Appeal’s footnote on suspension
Lord Justice Elias took the opportunity to say that he was concerned that suspension had become the default position of employers in cases where misconduct is alleged, regardless of the merits of the complaint against the employee(s) and the particular circumstances. He said that if suspension was the default response, then it would be a breach of the duty of trust and confidence to the employee. He also said that even in a situation where the evidence supports an investigation, suspension is not automatically justified. An important consideration will be the likelihood of repetition of the alleged conduct and, on these facts, that was very low.
The judge was also critical of the fact that this case had been referred to the Police and said that "Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the employee's conduct." Therefore, employers should only refer matters to the Police where there is a real fear that criminal acts may have been committed.
This case illustrates the importance for employers of treating each case of alleged misconduct on its merits. Suspension from work should, as the Court of Appeal pointed out, be very much a last resort where no other step can safely or fairly be taken.
Factors that should be considered by an employer before taking a decision to suspend an employee would include:
- reviewing the employee’s disciplinary record
- determining whether there is a risk of the behaviour being repeated
- considering whether there is any risk to anybody’s safety/the employer’s business which may arise if the employee is not suspended
- assessing any risk that the employee might tamper with evidence or intimidate potential witnesses
- the effect that the suspension may have on the employee.