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5. Suspension
[ch 5: pages 31-33]It has become increasingly the “norm” to suspend employees when investigating allegations of gross misconduct. In Crawford v Suffolk Mental Health Partnership [2012] EWCA Civ 138, the Court of Appeal reminded employers that suspension should not be automatic. Lord Justice Elias’s comments are worth quoting in full:
“[Suspension] should not be a knee-jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. Suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it.”
Where a decision is made to suspend, the 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.
The psychological harm caused by an unjustified suspension can sometimes lead to a claim for personal injury compensation in the civil courts and is 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 also result in significant deskilling.
In reality, successful claims for compensation for personal (psychiatric) injury resulting from the handling of the disciplinary process are rare. The law generally allows employers to assume that someone who is apparently healthy, with no history of psychiatric ill health, can cope with “even a very serious set back at work without developing a depressive illness”, as this recent case shows:
Mr Yapp developed a depressive illness due to the way disciplinary proceedings were conducted by his employer. In particular, he was suspended from post without being given the chance to state his case, although he was later reinstated. Yapp’s claim for damages for psychiatric injury failed. It was not reasonably foreseeable, given the absence of any special vulnerability, ruled the Court, that Yapp would develop a psychiatric illness.
Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512
The fact that an employer knows someone is on medication, such as antidepressants, is not normally enough to alert them to a need to take special care (Easton v B&Q [2015] EWHC 880).
Where a disciplinary procedure is contractual, a breach of agreed rules governing suspension is likely to be a breach of contract and may result in an injunction (see Chapter 2: Contractual disciplinary procedures).
Dr Hussain, an NHS paediatrician, was suspended after an allegation that she deliberately altered case records. There was a contractual right to suspend, but the procedure also set down detailed rules about how the suspension was to be carried out.
In particular, it was supposed to be time-limited and kept under review, and suspended staff were normally to be allowed to keep in touch with colleagues and to keep up their professional training. Hussain had been banned from the workplace and from contacting colleagues. Her suspension lasted indefinitely for many months.
She applied for a High Court injunction to prevent the Trust dismissing her in breach of its own procedure. In particular, she argued that her suspension was a breach of contract. The Court agreed. The Trust accepted that its right to suspend her was contractual, so it followed that the disciplinary rules limiting the scope of that suspension were also contractual. The Trust had breached these rules.
Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670
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 and as the Court of Appeal acknowledged in Mezey v SW London and St George’s Mental Health NHS Trust [2007] EWCA Civ 106, suspension is not “a neutral act” It changes the status quo from work to no work, and always casts a shadow over the employee.
The Acas Code says that any suspension must last for the briefest period possible and should be kept under continuous review.
An employee who is suspended should receive full pay, including any bonuses, supplements or productivity-related pay which would have been paid had they 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 accrue holiday 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. 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 victims. Sometimes a worker’s most serious problems begin after a suspension is lifted and they return to the workplace. Reps can help ensure practical and psychological support, reskilling and reintegration into the workforce is provided. This process can take months.
Sometimes, reps can use a decision not to suspend to argue that the employer did not genuinely believe the behaviour was gross misconduct. For example, in Graham v Secretary of State for Work and Pensions [2012] EWCA Civ 903, (facts summarised on page 8), the Court of Appeal said the DWP’s decision to transfer Ms Graham to a new role in a different JobCentre with unrestricted access to the computer system instead of suspending her, was irreconcilable with its assertion that trust and confidence had been destroyed.