The recent comments by a senior judge that employers should be wary of making suspension an automatic response to serious allegations of misconduct have caused something of a stir among HR professionals.
To recap, Court of Appeal Judge Elias LJ in Crawford and another v Suffolk Mental Health Partnership NHS Trust (on the BAILII website) said that suspension should not be a "knee-jerk reaction". It appears to him to be the "almost automatic response" of many employers to allegations of the kind in this case (two nurses accused of using inappropriate methods to restrain an elderly patient) to suspend immediately, irrespective of the likelihood of the complaint being upheld. Although Elias LJ's comments are not binding on tribunals, they are likely to be quoted by claimants in the future and, given the seniority of the judge making them, should not be taken lightly.
Commenting on the case [subscription required], XpertHR's consultant editor Darren Newman argues that employers should review their approach to suspension in the light of Elias LJ's points. Newman says that, in the past, many employers would not have thought twice about suspending an employee when there was an allegation of gross misconduct. Now, "thinking twice is precisely what they should do". He goes on to say that "Employers would be wise to have no general practice of suspending employees; each case should be decided individually".
XpertHR has been hearing concerns from employers that a failure initially to suspend an employee can undermine the employer's arguments in any subsequent tribunal proceedings that the employee committed a breach of the implied term of trust and confidence.
The argument we are hearing is that the employer would have difficulty in arguing that the employee committed a fundamental breach of contract (which is part of the rationale for suspension) if it allows the employee to continue working, even if in a different capacity from normal (for example, being moved temporarily to another department). In other words, the employer's justification for later dismissing the employee if the complaints are made out can be weakened by having allowed him or her to remain at work. The employee will say to the tribunal: if the employer believed the issue to be that serious, why did it let me carry on as normal?
We'd be interested to know how many readers share this view and if employers are reviewing their approach to suspension in light of the judge's comments.
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