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Suspension during disciplinary investigation must not be automatic.

The judgment in a recent Court of Appeal case is a strong reminder to employers that suspending an employee suspected of misconduct must not be a “knee-jerk” reaction. The case of Crawford and another v Suffolk Mental Health Partnership NHS Trust involved two nurses alleged to have strapped a patient to a chair and who were ultimately dismissed. Of particular concern in this case was the fact that their dismissal could end their careers as nurses because they may be unable to find new jobs in their chosen field. Previous cases have established that, in circumstances where dismissal could effectively end an employee’s career, an employer must take special care with the procedural fairness of the disciplinary procedure, including suspension. Although the suspension in this case was found to have been fair, other procedural failings led to a finding of unfair dismissal.

However, even though he determined that the suspension had been fair, Elias LJ felt so strongly about this issue that he provided a footnote to the judgment warning employers against the evils of automatically suspending employees during misconduct investigations, which he feels is all too common these days. He points out that an automatic suspension, without considering whether it’s necessary, is a breach of the employer’s duty of trust and confidence towards the employee, which could justify a constructive unfair dismissal claim. This isn’t surprising as most employees, rightly or wrongly, consider a suspension as a sign that they have already been found guilty. He also notes that it is often psychologically damaging to the employee to be completely cut off from his colleagues, many of whom are also probably friends. Furthermore, even if the employee is cleared of all allegations, suspicions will most likely remain, reinforced by the employee’s suspension.

So the first question is, when is suspension necessary? Or in other words, what should an employer consider in order to avoid being accused of rushing headlong into the “knee-jerk” suspension?  Suspension should normally only occur in cases of serious misconduct where the employer considers that the employee poses a threat to customers, other employees or the business in general. It may also be necessary if it would be impossible to conduct an investigation into the allegations if the employee were still working, for example to preserve evidence or to prevent witnesses being influenced. Once an employer establishes reasons which appear to justify suspension, it should then consider whether it’s possible to deal with those issues without suspending the employee, such as temporarily moving him to a different area of the business, changing his working hours or changing the work he performs.

Once an employer determines that suspension is necessary, how can it ensure that it’s procedurally fair? To begin with, suspension should always be with pay, unless the contract of employment specifically allows suspension without pay. The ACAS Code of Practice on Disciplinary and Grievance procedures states that, when a suspension with pay is considered necessary, it should be as brief as possible, it should be kept under review and it should involve a clear statement to the employee that the suspension is not a disciplinary action. How long is acceptable? Think days, not weeks, and definitely not months. The ACAS Code is not compulsory, but if there is a tribunal claim and the employer is found unreasonably to have failed to follow the Code, the tribunal can make a maximum 25% uplift to any award. There is also a risk that, as happened in Crawford, procedural unfairness can make the dismissal itself unfair.

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