Is it always right to suspend for misconduct?

The High Court has issued an important reminder to employers that an employee’s suspension when investigating allegations of misconduct should not be adopted as a matter of routine. 

The case in question concerned a teacher who was suspended due to her alleged use of force in three incidents involving two challenging pupils. She resigned and brought a claim for breach of contract.

Ruling

It is a well-established principle that you should not suspend every employee who is facing allegations of misconduct. For school staff, there is also specific statutory advice, which lays down that suspension should not be a default option and should only be considered if there is no reasonable alternative.

The High Court took note that the letter confirming the employee’s suspension stated “The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.”

However, the High Court highlighted that:

  • There was no explanation as to why a fair investigation could not be carried out without the teacher being suspended.
  • There was no evidence that any alternatives were considered before the suspension occurred.
  • The teacher was not asked for her version of events before being suspended. The High Court would have expected some sort of observation from the teacher before she was suspended. They did clarify this would not need to be a thorough investigation but “enough to determine whether the potential stigma associated with formal suspension could be avoided”.

The High Court affirmed that at least in relation to a “qualified professional in a function which is as much as a vocation as a job”, suspension is not a neutral act because it “changes the status quo from work to no work” and “casts a shadow over the employee’s competence”.

In this case, it was concluded that the suspension was adopted as a default position and taken as a knee-jerk response. The suspension did breach the implied term of mutual trust and confidence and the fact that the teacher resigned on friendly terms did not undermine or negate this.

Comment

The decision to suspend should never be taken without proper consideration or thought. If you do suspend when it is not reasonable to do so or for longer than necessary, it could be considered a breach of the implied term of mutual trust and confidence and lead to the risk of constructive dismissal. We would always encourage you to seek legal advice from your Employment Law Adviser before deciding to suspend an employee.

 

Director of Legal Services

James Tamm

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