In many cases, employees who are subject to disciplinary action are suspended as a matter of course. However, the recent case of Camden and Islington Mental Health and Social Care Trust v Atkinson has highlighted the danger of suspension without taking into account the full circumstances to assess whether it’s actually appropriate.
Update: more recent resources on this topic are available
This article was first published in 2008. While the information contained in the piece is still relevant, you may also find the up-to-date resources below useful.
Q Do you need a power to suspend in the contract of employment?
A While it would be better to have an express power to suspend set out in the contract, it may still be appropriate to suspend even where there is none. However, you would have to ensure that the employee suffers no detriment from the suspension. The employee would obviously continue to receive pay and other benefits due under the contract of employment. Generally, there is no implied term that entitles the employee to be provided with work.
Q In what circumstances would it be appropriate to suspend an employee?
A The issue of suspension may arise in a number of situations. The employee’s continued attendance may be regarded as a threat to the interests of the business – for instance, if they are joining a competitor – or there may be a health and safety issue. Most commonly, the issue arises where the employee has been accused of a serious disciplinary offence. However, the employee should not be suspended simply because inquiries are being made.
Before deciding to suspend, the employer should consider all the circumstances and in particular should address the following issues:
- Are there reasonable grounds for the suspension?
- What are the implications of suspension for the employee?
- Is there a potential threat to the business or other employees?
- Is suspension necessary for a proper investigation of the allegations?
- How long will the suspension last?
- Would moving the employee to another department remove the need for suspension?
Q When would suspension without pay be appropriate?
A There will not be many instances where suspension without pay is an appropriate measure. Before suspending without pay, the employer will have to ensure that there is power to do so in the contract, as there will be no implied right to take such action. The statutory disciplinary procedure will also have to be taken into account.
Suspension without pay is a relevant disciplinary action. So before a decision can be made, the employee must be given written notice of the allegations and invited to a meeting to discuss them.
Q On what grounds can a suspended employee claim constructive dismissal?
A In all contracts of employment, there is an implied term that the employer will act in a way that will maintain trust and confidence. If the employee is suspended in circumstances where the employer has not properly considered whether suspension is appropriate, or where the manner in which the suspension has been imposed has been unreasonable, the term will be breached. The employee may then resign and claim constructive dismissal.
Q Will their post make any difference?
A It may make a difference if the suspension is likely to have an adverse impact on the employee’s future career. In one recent case, a consultant psychiatrist who had voluntarily agreed not to undertake any clinical duties while the disciplinary process was going on successfully applied for an injunction to prevent her employer from suspending her. She argued that her professional reputation was being damaged unnecessarily by the suspension.
The court found that in these circumstances suspension was not a neutral act, as it cast an inevitable public doubt over the employee’s competency. Any eventual damages would not be sufficient to compensate for any loss of reputation.
Q Can an employee bring claims other than constructive dismissal?
A In addition to injunction proceedings to prevent damage to the employee’s professional reputation, there is also the danger that the suspension may affect their health. There is a much greater awareness now of how stress can impact on an employee’s health in these types of situations.
There is also the risk of a discrimination claim if the employee alleges that other staff of a different sex, race, religion, etc, would not have been suspended under the same circumstances.
Q Can we impose different terms during a period of suspension?
A This is similar to suspension without pay. You can only do this if there is a power in the contract to do so, and the statutory disciplinary procedure has been followed.
You must also ensure that other employment rights are not breached. Such an issue may arise where the suspension stipulates that holidays will not continue to accrue, as there may be a potential breach of the Working Time Regulations provisions that guarantee a minimum amount of paid leave per year.
Guy Guinan, employment partner, Halliwells