Suspension – the hot take

Many disciplinary investigations will involve the suspension of an employee, and, more unusually, it can be necessary or useful to suspend in other cases too. From one perspective, it’s a neutral administrative act, protecting both employer and employee. For the individual involved, however, it often won’t be seen that way. Suspensions can cause huge reputational damage and, where investigations are not concluded swiftly, time out of work can be deleterious to an individual’s skills and practice. For these reasons, a substantial body of case law has evolved to police the practice of suspension. Three recent cases coming hot on each other’s heels, make this a timely point to reflect on the issues that arise from suspension.

Contractual right to suspend?

The first point to consider is always whether the employer has an express contractual right to suspend the employee. If so, then any limitations on that right contained in the contract should be understood and followed. With no express contractual right you have to tread carefully. Some employees may be able to argue that they have an implied right to actively work. Always get advice if this might be the case.

Breach of trust & confidence?

Even assuming that you do have a contractual right to suspend, this must always be exercised in way which is consistent with the implied term of trust and confidence. This means that an employer can only suspend with ‘reasonable and proper cause’, as confirmed by the Court of Appeal in the recent case of Lambeth v Agoreyo. In this case, a teacher brought a breach of contract claim, challenging the decision to suspend her following concerns about her management of two difficult and disruptive pupils.

A judge in the County Court accepted that the employer did have reasonable grounds to suspend in the circumstances of the case, but on appeal to the High Court this was overturned. Finally, the Court of Appeal re-instated the original decision in favour of the employer. The Court of Appeal decision was taken on the basis that the original judge had not fallen into any obvious error of law and his decision should be respected. It seems evident from the judgement that another judge could legitimately have reached the opposite conclusion. None of that is helpful for employers looking for clarity over whether they are entitled to suspend or not! It is, however, useful to have the reasonableness element of the test of breach of the implied term reiterated. The employer did not have to go so far as to show it was ‘necessary’ to suspend.

Be clear and prompt

A key tip, therefore, is to formulate specific reasons for the suspension in the particular case and relay these to the employee. This ensures that you go through the necessary thought process to justify such a serious step before you commit, rather than trying to put together a justification after the event. Strong reasons for suspension might be where there is a risk of on-going misconduct (particularly in cases involving risk to children or other vulnerable groups), or where it would be difficult to investigate matters whilst the employee remains in the workplace.

Another good strategy is to act quickly in cases where suspension is clearly required. One of the stronger points of Ms Agoreyo’s case was that the headteacher had known about the instances of conduct that had been criticised and had been managing the issue without suspension for some time before the decision to suspend was taken by a governor.

It’s worth remembering that this is an area where there remains (rightly or wrongly) a ‘class divide’, with the suspension of regulated professionals such as teachers, health workers or those in financial services being much more likely to be questioned than for those in non-professional roles.

It can be difficult to balance the (sensible) desire to obtain legal advice in borderline cases, with the need to act promptly. This is where having a good relationship with responsive lawyers who really know the organisation is invaluable.

In contrast to Ms Agoreyo’s case, where the employee argued that suspension should not have taken place, there may be situations where the employee is seeking to prolong suspension – generally where they seem to be heading for a dismissal and prolonging suspension delays the inevitable and provides continuing income. Our second case, North West Anglia NHS Foundation Trust v Gregg Court of Appeal, concerns that sort of situation. The Claimant, a doctor, was suspended in circumstances where two patient deaths were being investigated by police, the Trust and his regulator. He sought an injunction from the High Court to prevent the Trust from proceeding with dismissal proceedings until the police investigation had concluded. He was initially successful, but the injunction was overturned at the Court of Appeal, who held that it was not a breach of the implied term of trust and confidence to continue disciplinary proceedings. This supports the general principle from unfair dismissal law that an employer will not be expected to hold its own procedures in abeyance whilst awaiting the outcome of criminal proceedings.

Discrimination & Whistleblowing

A final recent case (again involving a healthcare professional) is useful in illustrating the potentially severe consequences of suspension from the employee’s perspective. In Uwalaka v Southern Health Foundation NHS Trust EAT, the Claimant was a mental health professional working through an agency. He was suspended following a comment by a patient which suggested they were in a relationship. Although this was a potentially serious matter which required investigation, neither the agency nor the Respondent Trust took any steps to carry out a substantive investigation. The patient’s health seemingly deteriorated and, at the time of the EAT hearing the matter was still in limbo, with the Claimant having been suspended for three years. He alleged that the suspension was an act of discrimination or whistleblowing detriment. The ET and the EAT did not find that to be the case, and therefore his claim failed. Both tribunals expressed regret that they could not assist him, and criticised the actions of the Trust and the agency, suggesting that the Claimant show the judgments to any future employer concerned about the on-going suspension.

Tribunal, County Court or High Court?

Perhaps the problem for Mr Uwalaka was that he chose the wrong forum. The ET couldn’t analyse the matter as a breach of contract claim given he was still in employment, but he could potentially have brought such a claim (as Ms Agoreyo did) in the County Court or (as Dr Gregg did) direct to the High Court. It seems likely that the Trust/Agency did have reasonable grounds for suspension at the outset, but could they credibly argue those grounds remained in place indefinitely? And wouldn’t the failure to progress the investigation have been a breach of the implied term?

There has been some discussion recently about more closely aligning the jurisdiction of the court and tribunals, and suspension cases are one area where this might lead to more effective administration of justice. We’ll keep you posted.

Please get in touch if you would like to discuss any issues.

2019-05-08T13:23:48+00:008 May 2019|Insights|