Question: what’s the first step if you have grounds for suspecting an employee of committing gross misconduct? Answer: suspend them with pay pending a full investigation. Surely it’s a no-brainer?
Actually, no. An eminent Court of Appeal judge recently stated in no uncertain terms that employers should think twice before imposing a suspension in these circumstances.
In a “footnote” to his judgment in Crawford and another v Suffolk Mental Health Partnership NHS Trust  IRLR 402, Lord Justice Elias said that 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”. He added that employees “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”.
Strong stuff - and clearly an important statement of principle that is bound to be cited in future cases. It means employers should steer clear of automatically suspending employees facing allegations of serious misconduct. The particular circumstances should be carefully considered before that step is taken.
Significantly, this applies even if there is a contractual right to suspend under the employer’s disciplinary procedure. As Elias LJ indicated, the unreasonable exercise of that right could still breach the implied term of trust and confidence. The last thing you want to do is hand someone you suspect of major wrongdoing a constructive dismissal claim on a plate.
In many situations, of course, the employer will legitimately reach the conclusion that a decision to suspend is justified. It may, for example, be regarded as a precondition for a proper investigation to be carried out, or there may be concerns about further misconduct taking place. There might even be grounds for believing that evidence might be tampered with or witnesses pressurised. But the key point is that suspension should only be imposed where it is regarded as necessary and after other possible alternatives have been carefully explored.
Elias LJ’s strictures should also be read alongside the cautionary guidance on suspension set out in Acas’s Code of Practice on Disciplinary and Grievance Procedures: “In cases where a period of suspension is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.”
Whilst paid suspension remains a viable option in misconduct cases, it pays to tread carefully. Suspenders could get belted in court if they don't...