5. SUSPENSION

It has become increasingly the “norm” for employers to suspend employees when investigating allegations of gross misconduct. This has led to useful judicial comments by the Court of Appeal in Crawford v Suffolk Mental Health Partnership [2012] EWCA Civ 138, reminding employers that suspension should not be an automatic step in all cases of gross misconduct. Lord Justice Elias’s comments are worth quoting in full:

The psychological harm caused by a lengthy unjustifiable suspension can, in some circumstances, lead to a claim for personal injury compensation in the civil courts. It is also likely to be a breach of the implied contractual duty of mutual trust and confidence (Gogay v Hertfordshire County Council [2000] EWCA Civ 228). Lengthy suspensions can also result in significant de-skilling.

Where a disciplinary procedure is contractual, a breach of the agreed rules governing suspension is likely to amount to a breach of contract. These might include rules as to its length, review periods or the basis for any contact with colleagues. For an example of this, see Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670.

As a matter of best practice, an employee should be invited to a meeting at which the need for suspension is discussed and the proposal to suspend explained. All too often, suspension is executed in a summary, humiliating and gratuitously distressing manner.

Suspension is not the same as disciplinary action and the Acas Code expects this to be spelled out to the employee. Even so, there is always stigma attached to suspension and, as the Court of Appeal acknowledged in Mezey v. SW London and St George’s Mental Health NHS Trust [2007] EWCA Civ 106, it cannot be considered “a neutral act” It changes the status quo from work to no work and invariably casts a shadow over the employee’s competence.

The Acas Code requires any suspension to last for the briefest period possible. It should be kept under continuous review by the employer.

An employee who is suspended should receive full pay, including any bonuses, supplements or productivity-related pay which would have been paid had the employee been at work. Reps can play an important role helping to maintain the morale of an employee suspended over a lengthy period. Suspended workers continue to accrueholiday and if they fall ill they are entitled to occupational sick pay, provided they meet the normal contractual conditions for payment.

Access to occupational health support should be sought, as well as stress counselling if available. Many larger employers offer Employee Assistance Programmes that can be accessed. Several unions also provide confidential helplines for workers suffering from stress, bullying or harassment.

It is important to remember that those accused of bullying can be just as much at risk of mental health conditions as the bullied workers themselves. Indeed, sometimes an employee’s most serious problems can begin after a suspension has lifted, the employee is cleared and he or she returns to the workplace. Here reps have a key role to play, making sure practical and psychological support, re-skilling and re-integration into the workforce is provided. This process can take months.

Sometimes, a decision not to suspend can be used to argue that the employer cannot genuinely believe the behaviour amounts to gross misconduct. For example, in Graham v Secretary of State for Work and Pensions [2012] EWCA Civ 903, the Court of Appeal agreed that the DWP’s decision, following their initial investigation, to transfer Mrs Graham to a new role in a different job centre with unrestricted access to the computer system, rather than suspending her, could not be reconciled with its claim that trust and confidence in Mrs Graham had been so destroyed that she could no longer remain in its employment. This contributed to the conclusion that Mrs Graham’s dismissal was unfair.