Suspending Employees: Employers should avoid knee-jerk reactions

Employers should be cautious about suspending employees as a knee jerk reaction to avoid risks of employees lodging claims of constructive unfair dismissal. An employer was recently found to have jumped the gun in Harrison v Barking, Havering and Redbridge University Hospitals NHS Trust [2019] EWHC 3507(QB).

Ms Harrison brought a claim in the High Court for an injunction to prevent her employer from suspending her from her duties. Ms Harrison was the deputy head of legal services for the Trust. She had been summoned to a meeting to discuss the way she had handled a clinical negligence case which the Trust had lost. The meeting resulted in Ms Harrison being suspended and escorted from the premises. Ms Harrison found her situation at work stressful. She was signed off sick with anxiety a week later and was prescribed medication by her GP. After a period of time, Ms Harrison was asked to return on restricted duties which she refused to do on the basis she was happy to return to her original duties and not undertake any more clinical negligence work. The Trust decided to suspend Ms Harrison for a failure to follow a lawful instruction.

The High Court found Ms Harrison had strong grounds to argue there had been a breach of the implied contractual duty of mutual trust and confidence. The Court found there was no reasonable and proper cause for suspending her.

Employers should remember not to automatically suspend employees and assume they can justify the suspension. It is a difficult balance to strike for employers. On the one hand, suspending too easily could risk a knee jerk reaction and, on the other, a failure to suspend could result in the argument the allegation of misconduct was not sufficiently serious.

When suspending employees, employers should:

Ensure to suspend the employee for no longer than necessary. Remember suspension is not a disciplinary sanction; it is a neutral act.

Check the employment contract for the right to suspend the employee without pay. If there is no contractual right to do this, any suspension must be on full pay to avoid the risk of an unlawful deduction of wages claim;

Make sure they can justify the suspension and the risks the employee poses to the workplace; and

Ensure they follow the ACAS Code of Practice regarding any suspension to avoid a 25% uplift in compensation to the employee should any subsequent dismissal be found unfair.

If you (k)need advice about suspending employees, take it before you suspend.

It is far cheaper to take advice now, rather than be faced with an ET1 (a knee tee one?)

Duncan Milne, Solicitor
Employment Law
Blackadders LLP
@EmpLawyerDuncan

www.blackadders.co.uk