UK: Suspending Employees

Suspension: the basics

In instances of serious misconduct, an employer may in certain circumstances want to suspend an employee who is being investigated as part of a disciplinary process. It is not normally necessary to consider suspension unless there is an allegation of gross misconduct. Even then, a gross misconduct allegation will not always warrant suspension, as the case study below highlights.

Suspension may be appropriate where:

  • there is a potential threat to the business or other employees;
  • it is not possible properly to investigate the allegation if an employee remains at work. This would usually be because there is a risk that the employee may destroy evidence or attempt to influence witnesses; and/or
  • relationships at work have broken down. However, in such cases, each individual is likely to have their own view of who is to blame and employers should be careful not to give the impression of having prejudged this issue.

This list is not exhaustive. Each case should be considered, taking into account these and other factors the employer deems relevant.

Suspension: contractual requirement

We recommend standard employment contracts include a right to suspend, along with a method of calculating pay during the suspension. Even where an employer has the contractual right to suspend, it must be exercised on reasonable grounds and so employers should take care that suspension is justified in the circumstances. A record should be kept of the factors taken into account when deciding to suspend.

Avoiding a breach of the implied term of trust and confidence

If someone is suspended from work, there is a risk that the individual treats this as a breach of contract, resigns and claims constructive dismissal. This would be based on a breach of the implied duty of trust and confidence. In order to reduce the risk of employees having a good claim for constructive dismissal, there are a number of steps employers should take. We recommend that employees should be informed as soon as possible that the decision to suspend has been taken and this should be communicated in writing. This letter should clearly state:

  • that the employee is suspended;
  • how long the employee can be expected to be suspended for;
  • what the employee's rights and obligations during the period of suspension are – their employment contract continues, but they are not to report to work, must not contact colleagues and must remain contactable; and
  • that suspension is on full pay.

The employer should keep the suspension under review so that it continues for as short a period as reasonable in the circumstances. The reasons for the suspension should also be reviewed, as there may be changes on the ground which need to be taken into account. If continued suspension becomes unreasonable, then the employee may be able to argue that the outcome of the disciplinary process has been prejudged, rendering the outcome unfair.

An employer should also continue to engage with the employee and be clear that the suspension is not punitive. Rather, it is intended to facilitate investigation.

A "knee jerk" decision to suspend gives an employee a much stronger argument that there has been a breach of mutual trust and confidence by the employer. A suspension will be treated as "knee jerk" where it was automatic and the employer did not think through other measures which could have been put in place or whether it could have been avoided entirely.

The case study below illustrates the challenge an employee can make, based on an employer's decision to suspend.

Case study: Upton-Hansen Ltd Architects (UHA) v. Gyftaki

In the recent case of Upton-Hansen Ltd Architects (UHA) v. Gyftaki the claimant, Ms Gyftaki, was employed as a senior architect at UHA.

Ms Gyftaki gave notice that she would have to take extra annual leave due to a family emergency. Ms Gyftaki had already used up her holiday entitlement for the year. Due to genuine confusion, Ms Gyftaki was under the impression that she had been granted additional leave.

Late in the evening, the night before Ms Gyftaki was due to travel, her employer informed her that her request had been denied. Despite this, Ms Gyftaki travelled and said she would take the time as unpaid leave. Upon her return, Ms Gyftaki was suspended pending an investigation into the allegation that she had taken an unauthorised holiday. At this point, UHA also told Ms Gyftaki that they would also be investigating issues relating to her previous holiday absence.

Ms Gyftaki resigned when she was suspended. She brought claims against UHA for unfair constructive dismissal and wrongful dismissal. Ms Gyftaki argued that she had been constructively dismissed as both her suspension and the introduction of the issues of previous holiday absence into the investigation amounted to fundamental breaches of the implied term of mutual trust and confidence that was owed to her by UHA.

It was held by both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) that Ms Gyftaki's suspension amounted to a breach by UHA of the implied duty of trust and confidence. Both held that Ms Gyftaki had been constructively and unfairly dismissed.

In evidence before the ET, one of the directors of UHA said that in view of Ms Gyftaki's seniority, and the fact that she was project lead on three important projects, he felt that suspension was a prudent step to take. He justified this on the basis that it would protect the organisation, preserve the confidentiality of the investigation and protect Ms Gyftaki from embarrassment. Her business email account was also suspended.

The ET described the decision to suspend Ms Gyftaki as being at the heart of this case.

The reasons given by UHA, as found by the Tribunal, will be familiar to many employers and you might have sympathy with UHA. UHA was nervous that Ms Gyftaki would behave inappropriately at work, were she not to be suspended. They thought she was likely to be upset and so would set a bad example to her junior colleagues. There was also a concern that she might possibly breach any confidentiality obligation UHS had placed upon her.

The Tribunal gave no credence to these reasons, finding that there was no real evidence to support the stance of the directors. The ET did not accept that the suspension took place to protect the integrity of any investigation or the business as a whole. The ET accepted Ms Gyftaki's evidence that, given a protracted period of suspension, it was more likely for questions to be asked by colleagues and inferences drawn, rather than Ms Gyftaki simply returning to work and being advised to keep the matter confidential. The length of the suspension (more than three weeks) exacerbated the concerns the ET had over the reason for the suspension, particularly in light of Ms Gyftaki's mental ill health.

The ET found that, whilst the breach of trust and confidence was not the most shocking they had seen, there was indeed a breach and that one of the significant matters leading to that breach was the decision to suspend Ms Gyftaki. The ET, in applying a common sense approach, found that the situation could have been avoided by both parties communicating in a more sensible and timely way about the last minute nature of the request for additional leave. Ms Gyftaki could have asked sooner; UHA could have turned the request around before 8.30pm on the night before the leave.

The EAT agreed with the ET in this case. In relation to the matter of the suspension, the EAT found that UHA's reasons for suspension were not related to Ms Gyftaki's taking unauthorised absence, but rather how she might behave on her return to work when she was told that there would be a disciplinary investigation. It found the ET had been entitled to conclude that the suspension had been an element that had caused the fundamental breach leading to the constructive dismissal finding.

The EAT remitted the case back to the ET for a recalculation of the remedy.

Consistency of treatment

A suspension policy, in the same way as other policies, should be operated consistently. This comes into sharp focus where, for example, two or more employees are involved in an incident of misconduct – one is suspended, and the other is not, without good reason for the difference in treatment. This of itself could give an employee the basis of a claim for breach of trust and confidence. Moreover, if the employee who is suspended has a protected characteristic that the other does not, this might give rise to a case of direct discrimination.

It should always be clear, and should certainly form part of an employer's paper trail, that there has been some consideration given as to whether suspension is necessary in the circumstances and for what reason. The fact that an investigation might be required does not mean that it goes without saying that suspension should also take place.

Employers must remember where an employee resigns during a suspension and claims constructive dismissal because of it, the tribunal will focus very much on the suspension. The tribunal will not focus on whether the employer would have been justified in dismissing or disciplining the employee. The decision to suspend is the material issue and must therefore be given the attention it deserves.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions