On 4 April 2020, the government updated its guidance for employers in relation to the Coronavirus...
Is it proper to suspend employees?
The media has recently given extensive coverage to a story regarding an employee who was suspended when he jumped on to a railway track to rescue an elderly and disabled person who had fallen on to the track. According to reports, the employee had been suspended from work pending an investigation into whether he had breached company rules, including health and safety.
Many people will be aghast that an employee was suspended on those grounds, given that most robust human beings would have made some sort of attempt to rescue such a vulnerable person.
But setting that aside, it remains surprising that this employee was suspended because case law suggests that suspension as a ‘knee-jerk’ reaction is likely to amount to a fundamental breach of contract.
The leading case in this area of law is Gogay v Hertfordshire County Council, where the Court of Appeal decided that the suspension of an employee pending an investigation regarding allegations of sexual abuse, was a breach of the implied term of trust and confidence, as there did not appear to be any basis for the allegations.
However, in the case of Milne v The Link Asset and Security Company, the Employment Appeal Tribunal (EAT) decided that the suspension of an employee did not automatically involve a fundamental breach of the contract by the employer. In that case, the EAT was at pains to point out that the question it had to decide was not whether there was a fundamental breach of contract but whether there was an overwhelming case that the tribunal’s decision (which had been appealed) was unreasonable. The EAT made it expressly clear that other tribunals could easily have reached a different conclusion.
The Court of Appeal had to deal with the same issue in Crawford v Suffolk Mental Health Partnership NHS Trust. In this instance, the Court of Appeal stated that it was concerned that suspension appeared to be an almost automatic response as soon as any complaint of abuse was made about an employee. In the above mentioned case (Gogay), even when there was evidence supporting an investigation, suspension was not automatically justified and should not be a knee-jerk reaction. The Court of Appeal also dealt with the issue of whether suspension could be in the employee’s best interests and said that many employees would question that assumption and, in its opinion, they would be right to do so. It said that most employees would feel belittled and demoralised by a total exclusion from work and the immediate separation from their work colleagues, who are likely to also be their friends. The Court of Appeal said that such a suspension can be psychologically damaging, add credence to the allegations and cause lingering suspicions, even if the employee is subsequently cleared of the charges.
The Court of Appeal indicated that it would be interesting to carry out social research to discover to what extent persons conducting disciplinary hearings subconsciously start from the assumption that an employee who has been suspended is guilty rather than, looking for evidence to confirm or rebut the allegations.
Given the clarity of the case law it is surprising that the employee was suspended when he went to the aid of a passenger who had fallen on the rail track, as it seems there is little doubt that the suspension was a knee-jerk reaction. Employers would be wise to make sure that suspension is only be used where there is a potential threat to the business or their employees. The period of suspension should be as short as possible and should not be used as some form of punishment but purely as a means of aiding the investigation. Alternatives should be considered, for example, moving the employee to another part of the business while the investigation is carried out.
Ultimately, even though an employer has an express contractual right to suspend an employee, with or without pay, the employer must remember that this is subject to the implied term that the suspension must be carried out on reasonable grounds.
For more information please contact Reggie Lloyd on 01206 217347 or email@example.com.