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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I think we should try to put this one to bed once and for all.
I have many times heard from employers that they have been advised by their lawyers that if they fail to suspend an employee then they will have difficulty arguing later that what the employee did was gross misconduct.
I have to say that I just don't see that myself. Certainly in clear cases (like theft) you could hardly argue that theft wasn't gross misconduct just because the alleged thief wasn't suspended pending the disciplinary hearing.
In less clear cut cases, perhaps relying on the employer's particular policies, then what matters is surely how the employer has communicated its policy and dealt with the disciplinary process. If the invite to the hearing makes it clear that the alleged offence is potentially gross misconduct and could result in dismissal then I cannot for the life of me see how the dismissal could be unfair just because there was no suspension.
Unless, of course, someone out there knows different! Has anybody had a case where the Tribunal has actually ruled on the point? Or is this whole argument just a legal myth that seems to have found its way into the legal advice that some employers have been receiving?
Suspension in cases of alleged gross misconduct is something I've always encountered in over 20 years of HR and the logic has always been the "if you don't suspend then you don't consider the allegation does fundamentally breach the contract" argument. Nevertheless every disciplinary procedure I've ever written has always said "you MAY be suspended on full pay", in the gross misconduct not that "you WILL"
If it is a myth then it is a very pervasive one.
As an aside, all I've read about the case that has caused this debate makes me think that suspension was appropriate, since the suggestion was that a patient had potentially been physically abused. I don't think any responsible organisation could allow the staff member to remain in work while such an allegation was investigated. I'd taken the criticism of the judge to be more around the length of suspension and the fact that the hospital treated it as a criminal matter.
I guess the only way we'll know for definite is when there have been some test cases!
The view that a failure to suspend an employee undermines a gross misconduct dismissal appears to have no real legal basis.
This point was addressed in East Berkshire Health Authority v Matadeen [1992] in which it was held that it would be "extremely unwise, save in obvious cases, to draw any inference or conclusion from the suspension or lack of suspension.." Specifically you cannot infer that a matter is not serious solely because of a failure to suspend an employee. They refer to the fact that good industrial relations practice does not require suspension in every case.
The knee jerk approach to suspension has also been heavily criticised in other cases most notably Gogay v Hertfordhire County Council [2000]. This is a case which highlighted the dangers of suspending an employee without careful consideration of an allegation and their basis. This is particularly appropriate in sectors where there is a stigma attached to suspension e.g. health and social care sectors. The result was a successful claim for personal injury due to clinical depression arising from the suspension.