To suspend or not to suspend an employee – 7 factors to consider
Suspension should never be a routine or ‘knee-jerk’ response – but what factors should influence your decision?
If you suspend where this is not reasonable, or the terms of suspension are unreasonable (for example, the period of suspension is unreasonably long) you may be at risk of an employee (with 2 years’ service) resigning and claiming constructive dismissal.
High Court criticises teacher’s suspension
In the recent case of Agoreyo v London Borough of Lambeth, the High Court was critical of a ‘knee-jerk’ suspension.
Ms Agoreyo was a school teacher, responsible for a class of five and six year olds. She was alleged to have used excessive force whilst attempting to control two children.
Her employer suspended her, pending a disciplinary investigation.
The High Court stressed that suspension is not a neutral act, but “inevitably casts a shadow over the employee’s competence”. It was critical of the employer’s failure to explore alternatives to suspension, and its failure to consider Ms Agoreyo and another witness’s versions of events before suspending. There didn’t need to be a full investigation, but their initial observations should have been sought: “enough to determine whether the potential stigma associated with a formal suspension could be avoided”.
Should you tell an employee why you are suspending them?
The High Court in Agoreyo didn’t accept the employer’s argument that it had to suspend for child protection reasons, noting that this didn’t match the reason given in the suspension letter: ‘to allow us to investigate fairly’.
What can be drawn from this is that giving a standard (but misleading) reason for suspension could make it difficult to rely on another reason further down the line.
But think carefully before explaining to an employee your reasons for suspending them. Will this inflame an already fraught situation? If the reason is sensitive (eg. you think they are likely to remove confidential information), is there a risk that telling them this will, of itself, lead them to resign and claim constructive dismissal? Putting aside questions about whether or not such a claim would ultimately succeed, this might not be a situation you want to find yourself in.
That said, it is always important to document your reasoning carefully for your own purposes, and in case you need to rely on it in a tribunal claim.
Seven factors to consider before you suspend
Some commentators have suggested that Agoreyo should be viewed with some caution: it came from the High Court, rather than an employment tribunal, and it concerned a teacher i.e. a professional in a ‘vocation’ – and arguably additional care should be applied before suspending from such roles.
In any event, suspension should never be automatic. Whether it is reasonable will always depend on the circumstances, but here are seven factors that are often relevant:
- How serious are the allegations? Although this alone will not necessarily be reason to suspend.
- Are further investigations appropriate before suspending eg. initial discussions with witnesses / the accused employee?
- Are there risks if the employee remains eg. to other employees; theft of confidential information; damage to reputation; repeat of the misconduct?
- Is there a risk to the investigation if the employee remains eg. influencing witnesses; removing evidence?
- What is the employee’s role, length of service, disciplinary record? Do they rely on continuous working to maintain their skills or earnings (eg. via commission)? Are they a professional in a ‘vocation’?
- How have you treated others? Is there a discrimination risk?
- Are there alternatives? Does their contract allow them to be moved to another role or location, or would they agree to this? Would it be better for all if they agreed to remain away voluntarily?
Weighing up these factors is not necessarily straightforward, and if you have any questions about a suspension, please get in touch with your usual Brodies contact.
With thanks to Louise Usher, trainee solicitor in Brodies employment team, for contributing to this blog.
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