Where employees are accused of gross misconduct, suspending them on full pay pending a disciplinary investigation is often a knee-jerk reaction. However, as the case of Upton-Hansen Architects Ltd v Gyftaki, reminds us, such a step is not always justified. The architects’ firm involved fell into that trap and found itself liable to pay a substantial compensation award.
Ms Gyftaki was a senior architect who had exhausted her annual entitlement to paid leave but wanted to fly to Greece for two days in order to deal with an urgent family matter. The firm refused permission on the evening before she was due to fly, but Ms Gyftaki still embarked on her trip. She was immediately suspended on her return and her email account was blocked. She resigned shortly before a disciplinary hearing was due to take place and launched Employment Tribunal (ET) proceedings.
In ruling on the matter, the ET found that the decision to suspend her was not taken because of concerns about her alleged misconduct but was motivated by the firm’s nervousness that she would be upset and make a scene in the office, thereby setting a bad example to junior colleagues. The firm’s HR advisers appeared to have taken the view that any charge of gross misconduct would generally warrant suspension.
The ET also found that the firm had acted unfairly in taking into account an incident the previous year which was also said to have resulted in her exceeding her holiday allowance. That matter had been resolved at the time and should not have been brought up again. After upholding her complaints of wrongful dismissal and unfair constructive dismissal, the ET awarded her a total of £34,083 in compensation.
In ruling on the firm’s challenge to that outcome, the Employment Appeal Tribunal (EAT) found that the ET was wholly justified in concluding that there was no fair reason for the woman’s suspension, which amounted to a breach of the implied term of trust and confidence in her employment contact.
Arguments that she was partly to blame for her own dismissal and that she had failed to take adequate steps to mitigate her loss were also rejected. The EAT accepted that the reasons the ET gave for awarding her 40 weeks’ net loss of pay were inadequate. The same ET was directed to consider that issue afresh, but the firm’s appeal was in all other respects dismissed.
There are, of course, instances of serious misconduct where an employer may wish to suspend the employee under investigation. This may be appropriate where there is a potential threat to the business or the safety of other employees, or where it is not possible to properly investigate the allegation if an employee remains at work. It might also be appropriate if there is a fear that the employee could destroy evidence or attempt to influence witnesses. Careful consideration of whether such there really is such risk, rather than suspending as a ‘knee-jerk’ reaction will assist an employer trying to avoid the impression of having pre-judged the issue, and reduce the risk of a successful unfair dismissal claim.