Is it reasonable to suspend someone for fear of how they will react?

Something we are asked about fairly frequently is when it is appropriate to suspend an employee (and when it isn’t). There’s also been a great deal of case law about this over the years, and we’ve covered the topic in several previous articles, including most recently here.

It is well-established law that suspension should not be a knee-jerk reaction and the employer will need to be able to show that it was justified in the circumstances. Often we find that employers are worried about how an employee will react when they are told that they are facing disciplinary allegations. Is it acceptable to suspend them to ensure they don’t cause any disruption?

In the recent case of Gyftaki v Upton-Hansen Architects, the employee was a senior architect who had taken a period of leave without permission. She was suspended on her return from work while the employer carried out an investigation.

In evidence at the Tribunal hearing one of the directors explained the reasons for the Claimant’s suspension. The Tribunal summarised these as being “essentially that the Respondent was nervous that the Claimant would behave inappropriately at work, were she not to be suspended… that she was likely to be obviously upset and so to set a bad example to her junior colleagues, and [there was] a concern that she might possibly breach any confidentiality obligation the Respondent had placed upon her.” Her email account had also been suspended during this period.

The Tribunal was very critical of the employer’s decision to suspend and found that this (together with the employer’s decision to include a historic issue in the allegations against the Claimant) amounted to a breach of trust and confidence entitling the employee to bring a constructive dismissal claim. In particular, they felt the following were significant:

• That there was no evidence to support the director’s view about Ms Gyftaki’s potential reaction to being told about the disciplinary allegations
• That the reason for suspension given to her at the time was not the same as the reasons they had put forward in evidence at the hearing
• That the suspension lasted over three weeks, despite the fact that the Claimant had suffered mental ill-health as a result of the suspension
• That in terms of a breach of confidentiality about the process, the Tribunal felt it was more likely that questions would be asked and inferences drawn by colleagues about the Claimant’s absence for a lengthy period of suspension than would have been the case if the Claimant simply resumed her normal duties having been told about the need for confidentiality.

The employer appealed against the Tribunal’s decision, and the case was heard by the Employment Appeal Tribunal (EAT). The EAT agreed with the Tribunal’s decision. In doing so, they commented that the employer had appeared to rely on advice from its advisers that suspension would always be appropriate for any allegations of gross misconduct, and strongly recommended “that the relevant persons consider whether they should be acting differently in future.”

The employer had also appealed against the Tribunal’s decision not to make a reduction to compensation for contributory fault, but this was also dismissed by the EAT. They felt that the Tribunal was entitled to conclude that the Claimant’s actions in taking the leave without authorisation were not causally linked to the fundamental breach of contract.

The clear lesson for employers in this case is that suspension should only be used where it is reasonably justified – and concerns about how someone will react to being informed of disciplinary allegations against them will not normally meet that test without some real basis for those concerns. Similarly, being accused of gross misconduct does not automatically amount to justification for suspension. If in doubt, it is best to take advice – if you’re dealing with a potential suspension situation, then give us a call to talk it through.